Schrodinger’s Request

The important thing is not to stop questioning. Curiosity has its own reason for existing.”

-Albert Einstein

I fondly remember from the 1990s, in the days before the introduction of the Civil Procedure Rules, spending Fridays dictating my pleadings in chambers. Defence, Request for Further and Better Particulars, and Interrogatories, followed by Defence, Request for Further and Better Particulars, and Interrogatories. In those days it made good sense to question everything and obtain as much information as possible about a plaintiff’s case, in order to gain as great a tactical advantage as possible.

Moreover, if the Request was not answered, an application to compel the provision of Further and Better Particulars could be made, with the delicious prospect that a failure to make an adequate response, would lead to the making of an Unless Order, leading to a strike out for further non compliance.

Requests for Further and Better Particulars and old-style Interrogatories have long since been replaced in the Civil Procedure Rules, by the ubiquitous Part 18 Request. This is a procedure which is not limited to questioning the pleadings but can stray more widely, at least in theory, to extraneous matters which do not feature on a party’s pleaded case. But they are not so common as their predecessor procedure under the old County Court Rules.

Paragraph 1.1 of Practice Direction 18 requires a written request (allowing a reasonable time for response) to be served before any application is made to the court for an order under Part 18: and paragraph 1.2 of that Practice Direction provides that such a request:
.. should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the [requesting] party to prepare his own case or to understand the case he has to meet ..

These days, Part 18 Requests are rare beasts, at least in credit hire litigation. The provision of mandatory particulars, and debarral orders for failure to plead impecuniousity adequately, or to give disclosure of the usual bank statements, credit card statements, wage slips etc (“the impecuniousity documents”) usually renders them otiose. I was thus thoroughly intrigued in a recent case, to see a Part 18 Request seeking no fewer than 84, separate pieces of information. 

A Deputy District Judge refused to dismiss the Defendant’s application for an Order compelling the provision of the information, in toto, and instead worked through the various questions. In the end, 11 out of the 84 pieces of information were ordered. Treated as a “score draw” on costs, with the Deputy District Judge making no order for costs on the Defendant’s application what heavily influenced the court was the recent authority of Al Saud v Gibbs and Another [2022] EWHC 706 (Comm).

Although a decision of the Commercial Court, the Deputy High Court judge in that case helpfully explained by reference to a number of authorities, what matters could properly be included in a part 18 request, and what would be regarded as illegitimate matters to raise questions on. So for example material which goes to credit, for the purposes of cross examination is not a proper subject matter:

33. That means (for example) that requests under Pt 18 cannot be used for the purpose of obtaining material for cross-examination as to credit (Thorpe v Chief Constable of Greater Manchester [1989] 1 WLR 665), or to obtain material to support different claims between the same parties or claims against different parties (Trader Publishing Ltd v Inc [2010] EWHC 142 (Ch)). As Morgan J observed in Barness v Formation Group Plc [2018] EWHC 1228 (Ch) at [10]:

.. [R]ule 18 deals with the current position at the time of the application to the court and requires the court to identify: what matter is currently in dispute? It is only in relation to such a matter that an order can be made clarifying the matter or giving additional information in relation to the matter ..

The test of necessity is a stringent one:

34. The terms of the Practice Direction also make it clear that requests and orders under CPR Pt 18 must be strictly confined to matters which are reasonably necessary and proportionate for the stated purposes. In Hall v Sevalco Ltd [1996] PIQR 344 at 349 (a case about interrogatories under the RSC) Lord Woolf MR observed that “necessity is a stringent test”: and in King v Telegraph Group Ltd [2004] EWCA Civ 613, [2005] 1 WLR 2282 at [63], Brooke LJ laid particular stress on the strictness required by the terms of the Practice Direction:

.. the emphasis, as always in the CPR, is on confining this part of any litigation (in which costs tended to get out of control in the pre- CPR regime) “strictly” to what is necessary and proportionate and to the avoidance of disproportionate expense ..

35. In my judgment, the requirement of the rule that the information sought must relate to a “matter which is in dispute in the proceedings”, and the requirement of the practice direction that any request must be strictly confined to matters which are reasonably necessary and proportionate for one or other of the stated purposes, are threshold conditions. If those conditions are not satisfied, then the court simply has no jurisdiction to make any order under CPR Pt 18 (though, as Thirlwall J has pointed out, there may be other powers available to the court to assist in avoiding the waste of time and costs and in achieving the “swift and .. proportionate and economical litigation” referred to by Irwin J).

Only if the threshold conditions are met, will the court consider whether in the exercise of its discretion it should make an order for compliance, grounded in the application of the overriding objective:

36. If, however, those threshold conditions are satisfied, then the question becomes a matter for the court’s discretion. The power under CPR Pt 18 is one of the court’s case management powers, and its exercise should be considered in the context of the overall case management of the action: see Toussaint v Mattis [2001] CP Rep 61, CA, at [16], per Schiemann LJ.

37. CPR Pt 1.2 requires the court to seek to give effect to the overriding objective when considering whether and, if so, how to exercise a power such as that under CPR Pt 18. As Roth J noted in the cartel case of National Grid Electricity Transmission plc v ABB Ltd [2014] [EWHC] 1555 (Ch) at [39]:

A Part 18 request .. is to be interpreted in the light of the overriding objective and is part of the more open approach to litigation which the CPR seeks to establish and promote.

38. As the notes at paragraph 18.1.10 of the White Book state, that will usually mean in cases involving CPR Pt 18 having regard: .. (a) to the likely benefit which will result if the information is given and (b) to the likely cost of giving it; and (c) whether the financial resources of the party against whom the order is sought are likely to be sufficient to enable that party to comply with such an order ..

Practically a concisely but sufficiently pleaded statement of case, and the fact that disclosure and witness statements will usually follow in a credit hire claim, will usually render a part 18 request superfluous, when judged against the test in the Practice Direction:

39. The requirement in the Practice Direction that requests under CPR Pt 18 must be strictly confined to matters which are reasonably necessary and proportionate for one or other of the stated purposes reflects that fact that requests and orders under CPR Pt 18 are not an automatic aspect of the progress of litigation under the CPR, and should not therefore be made as a matter of routine.

40. Statements of Case, if properly drafted, should already contain all the information necessary to define the issues which the court has to decide and to ensure that each party knows the case which it has to meet: see eg Ventra Investments Ltd v Bank of Scotland [2019] EWHC 2058 (Comm) at [22] to [25]. Moreover, clarity is usually better served by brevity than prolixity. As Lord Woolf MR pointed out in McPhilemy v Times Newspapers Ltd and others [1999] 3 All ER 775 at 793:

.. As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification ..

41. It follows that it will not usually be either necessary or proportionate (or in accordance with the overriding objective) for the other party to request (or for the court to order) a party who has served a compliant but concise statement of case to expand upon that pleading by the provision of more detailed further information.

42. In cases begun using the procedure in CPR Pt 7, disclosure under CPR Pt 31 will normally be followed by the exchange of witness statements under CPR Pt 32. It will therefore also not often be necessary or proportionate (or in accordance with the overriding objective) for the other party to request (or for the court to order) a party to provide at any earlier stage information which will in due course be revealed on disclosure or which will be contained in those witness statements or in expert reports: see eg National Grid Electricity Transmission plc v ABB Ltd [2012] EWHC 869 (Ch) at [73] to [74], per Roth J, and Stocker v Stocker [2014] EWHC 2402 (QB) at [27], per HHJ Richard Parkes QC (sitting as a judge of the High Court).

There is really nothing new, or surprising in this decision in the Commercial Court. Nonetheless, it forms a useful aide memoire of the relevant principles for determination of an application to compel compliance with a Part 18 Request, and what should, or should not be ordered in consequence.

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