Applications for liability orders for NDR are typically dealt with in bulk lists before the Magistrates’ Court. Sometimes hundreds at a time, in a process that has been honed over the years to work effectively for both the Court and the billing authority, in circumstances where the majority of respondents do not turn up to dispute liability.

This article looks at best practice for what happens when a summons is disputed, either by the respondent in person or by prior correspondence.

Quite often it is simply not possible to make a reasoned decision on a potential dispute at the time. This might be because the individual has simply turned up (or appeared online) unannounced; produced large volumes of documents previously unseen; or is raising new arguments not previously disclosed.

Adjournment

The first step is to seek an adjournment for a suitable period of time, normally 4 weeks will suffice. This should allow you time to make further contact with the respondent, and review whatever documents or arguments are being put forward.

Ideally at this stage, the court (usually the legal adviser) should be persuaded not to make specific directions or indeed list the matter for trial. This is because it may be the case that you are persuaded by the respondent, based on their evidence, that liability ought not to be with them. Therefore time and costs will not be wasted in complying with directions or simply withdrawing a summons on the morning of trial.

When requesting the adjournment it is also a good idea to invite the court to list the next directions hearing to be dealt with by CVP outside of the bulk list. This will save all parties the time and cost of attending court in person.

Review

Following the first (bulk) hearing, and review of the respondent’s evidence, the billing authority must decide whether to proceed with the summons, taking legal advice on the points in issue if appropriate. Where there remains a dispute it may be possible to agree the directions with the respondent or their legal advisors in advance and thus limit the directions hearing to 10-15 minutes in seeking the court’s approval and dealing with any other issues.

Directions

If not, then it is a good idea to attend court armed with a set of draft directions, and an explanation of why you are seeking them. These should include provision for the respondent to state their case and file evidence, a response by the billing authority with its evidence, filing of court bundles and skeleton arguments and a listed final hearing with an allotted time period. Engaging legal professionals either within the billing authority or externally can assist in the preparation of the documents in the case.

The trial time should be realistic to avoid running out of time – a “split trial”. Normally most time is taken up with witness evidence. As a rule of thumb about an hour (and maybe up to two) should be allowed per witness with a further hour for legal arguments. In any event the court will assist with this aspect once it is known how many witnesses each side intends to use, so be prepared to answer this question!

The matter can then proceed with each side complying with the directions. In the civil courts, failure to comply with a direction can be fatal to even the strongest of cases. Whilst this is not strictly the case in the Magistrates’ Court, it is none the less vital to comply on time.

If you have a valid reason for not complying, for example a witness has not been available, invite the respondent to agree to a short extension to the deadline, and be prepared to agree a similar extension to any of its ongoing obligations. If agreement is not forthcoming, it is best practice to make an application to the court seeking to vary the directions. This can normally be done “on paper” and without the need for a separate hearing. Again full details and reasons should be given.

Whilst it is not inevitable that a court will refuse to allow evidence that is late, it is not unknown. If the respondent’s evidence is late, it is worth pointing out to the court at the final hearing just in case a strict bench or district judge decides to refuse certain evidence. The court has a wide jurisdiction in this regard. But of course its unlikely to happen if the billing authority itself has been late.

Keep Reviewing

Remember to keep the billing authority’s position under review at all times. If evidence is disclosed which materially affects the billing position and hence the prospects of succeeding at trial, the right decision may be to withdraw the summons at that point. It is unlikely that the billing authority will come in for criticism, or more importantly an adverse costs order, if that evidence should have been provided at an early stage and wasn’t.

Finally, the trial itself. We always recommend instructing a professional advocate to represent the billing authority. This is a skill which takes many years to perfect and even the most hardened of court officers can miss opportunities which present themselves throughout the trial.

Richard Kerr