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WHAT IS A DIRECTIONS QUESTIONNAIRE?
Before a court hearing can take place the court needs to decide what steps must be taken to prepare the case for a final hearing. Defended claims are assigned a ‘track’ – small claims track, fast track or multi-track. The track reflects the value and/or complexity of of the case. The Directions Questionnaire helps decide which track to assign a claim to and what directions to give.
Below, we’ve set out a guide to completing the directions questionnaire as a LIP. For larger claims, you will need Form N181 for your directions questionnaire. Form N180 is for smaller claims (normally less than £10,000).
First, we will lay out some questions you should ask at this stage if you are a LIP. These address the most common mistakes we see from people filling out the directions questionnaire without the help of a solicitor.
If you have any questions regarding your directions questionnaire, we are more than happy to provide free initial advice on forms N180 and N181. Please call Helix Law on 01273 761990 or book a call back.
SIMPLE THINGS TO CHECK BEFORE GOING FURTHER
Below is a non-exhaustive list of things that can go awry when litigants in person draft their own directions questionnaire, claims and defences. This generally focuses on contract claims.
If any of these issues arise in your case, you need to address them quickly and certainly before submitting the directions questionnaire. If you don’t, these issues may lead to you losing the case and/or being ordered to pay the other side’s costs.
Even if you have a good claim, these ‘technicalities’ are crucial for the proper completion and filing of the directions questionnaire. Don’t expect the court to take a broad-brush approach. In many instances, this ‘common sense’ approach will be outside the court’s jurisdiction.
Here are points you should clarify before submitting your directions questionnaire. These are applicable to the questionnaires for both Form N180 and Form N181.
- Has the relevant pre-action protocol been followed? If not, the defaulting party may incur a penalty in costs even if they have a good claim.
- Is the claim subject to an agreement to arbitrate? If so, the claim can be stayed and the claimant ordered to pay the costs.
- Does the claim, defence and counterclaim identify the correct legal person? For example, has your claim or directions questionnaire incorrectly name an individual as a party instead of the limited company or vice versa? Ensure that you have not put the name of the unincorporated business instead of the individual who runs the business. For example, if John Smith runs the Kings Head as a sole trader and he owes you money, then the defendant should be John Smith and not the Kings Head.
- Has the invoice been addressed to the defendant, and is the legal person that entered into the agreement the same as the legal person invoiced and claimed against? This matters even if the individual is the sole shareholder and director of the limited company. You cannot usually sue the individual for a breach by their limited company.
- Has the amount claimed fallen due and/or been appropriately demanded under the agreement?
- Is the claim beyond the statutory limitation period?
- Has the loss already been recovered or is it a loss to a third party rather than the claimant?
- Is the claim for betterment? For example, is the claim for the cost of a new vehicle when the goods damaged were already 5 years old?
- Does the contract exclude liability for the loss being claimed? If so, is it an unfair term or a penalty clause that can be struck out by the court?
- Have any notice requirements or condition precedents within the contract been complied with?
- Does any special legislation apply? For example, the Housing Grants Construction and Regeneration Act 1996 will apply to most construction contracts where neither party is a residential occupier within the meaning of that act.
- Has the matter already been decided by another court?
- Does the claim and defence give the court enough information to identify the claimant, the defendant, the agreement, the terms performed, the terms that are breached and an explanation of how the breach led to a recoverable loss?
- Has the loss been clearly calculated and articulated in the claim?
- Have you considered your potential liability for your opponent’s legal costs if your claim or defence is unsuccessful?
- Can you cover the court fees and expert fees?
- Are any of the parties insolvent?
THE DIRECTIONS QUESTIONNAIRE
The rules governing Civil Litigation must be followed at all times. Recent case law suggests that the courts may make only a small allowance for unrepresented parties being ignorant of the rules. As such, it is important when submitting your directions questionnaire that all documents and facts are in place.
As stated previously, there are two directions questionnaires, depending on the size of the claim: Form N180 and Form N181.
The Form N180 directions questionnaire is slightly shorter. It applies to claims that the court usually allocates to the Small Claims Track. The directions questionnaire for this track will ask the involved parties if they agree for referral of the case to Small Claims Mediation. The directions for the Form N180 questionnaire are relatively straightforward. Notes will accompany this questionnaire to help both parties complete it. If you’d like additional help filling out the N180 directions questionnaire, we are more than happy to assist you.
For larger claims that will befast-track and multi-track claim, the directions questionnaire is Form N181.
The directions questionnaire Form 181 is what we address below. It asks the parties to provide basic information that allows the court to decide which directions/processes it will order the parties to follow to resolve the case. The letters for each paragraph below correspond to the letters used in Form N181:
A. This item on the directions questionnaire asks whether the parties want to stay the court process for a number of weeks or months to give the parties time for mediation or other negotiation. An unreasonable refusal to mediate or negotiate could result in an adverse costs order. If you’re thinking of rejecting mediation or an offer by the other side to stay proceedings, you should seek the advice of a specialist litigation lawyer to see if your refusal is appropriate and unlikely to harm you on costs.
B. In certain circumstances, High Court cases can be heard in a district registry nearer to your home. You may consider it needs to be heard by a particular division like the Companies Court of the Technology and Construction Court. This section of the Form N181 directions questionnaire allows you to ask the court to make a transfer to a different specialist division and/or your preferred hearing centre. On the directions questionnaire, you will need to explain why you have asked for a particular hearing centre.
C. You should check to see if the claim is governed by a particular pre-action protocol and whether it has been followed and, if not, why. If there is no specific pre-action protocol, the parties should still comply with the Practice Direction Pre-Action Conduct. The protocols and practice directions can be found at this link. Failure to follow the pre-action protocol can result in costs sanctions and give the non-defaulting party a significant tactical advantage.
D. – If you have made an application, please confirm the details in section D1 of the Form N181 questionnaire.
– If you have asked the court to allocate the claim to the Fast Track (which is subject to different costs rules) please state why on line D2 of Form N181. You will find this court guidance about the differences between the tracks very useful.
– D3 asks you to inform the court about any agreement you have made with the other side about the scope and form of disclosure.
– Pages 5 and 6 of EX305 give some useful outline information about what disclosure is. In order to understand item D4 of questionnaire N181, you need to look at CPR 31.5, which describes the circumstances where and how a Disclosure Report, Form N263, should be made.
E. Often the court will need expert opinion about a point in issue. For instance, in a dispute about a building’s quality or need for repair, the expert opinion of an independent building surveyor may be necessary. It is not generally enough to show pictures or have evidence from non-experts on these matters. The court will want specific directions on what experts are required, whether there is to be a single joint expert or whether each side will be allowed their own expert. The court will also need to decide whether the expert(s) will be required to give oral evidence at trial.
There are no easy answers about the correct approach, each case turns on its facts. As a general rule, the lower the value of a case, the more likely that the court will order the written report of a single joint expert. Expertise, independence and proportionality are essential to an appropriate expert instruction. Any request made in this section of the directions questionnaire must take this into account. Further guidance on dealing with expert evidence is in Part 35 of the Civil Procedure Rules and the associated Practice Direction.
F. For the court to understand the likely time estimate for the trial, it is important that the questionnaire give the best approximation of which witnesses you intend to call in support of your case. It does not mean you cannot later increase or decrease the number of witnesses or change the selection. However, if a change in the scope of your evidence may result in a trial date being lost, you may be unable to introduce extra evidence at a later stage. You must give your best estimate in your directions questionnaire.
G. You may need to talk with a specialist solicitor and/or discuss this with your opponent’s solicitors. It is important not to agree to an estimate that is unrealistic and that may cause the trial to be adjourned at the last minute.
H. If you are self-represented, then you will not have to fill out this part of the directions questionnaire.
I. If you are intending to bring an application, you should say so here on the questionnaire. You will then have an opportunity to give the court more information to help the judge manage the claim. This is not an opportunity for you to tell the judge your evidence and why you should win unless it is relevant to the management of the claim.
J. Coming up with draft directions will be a challenge for any litigant in person. Again, I recommend that you consult a specialist litigation solicitor. The Form N181 directions questionnaire gives links to standard directions for both Fast-Track and Multi-Track. However, you will need to decide which parts to discard, keep, and amend. Simple guidance is not possible for this part of the directions questionnaire as the requirements vary by case.
BOTTOM LINE ABOUT DIRECTIONS QUESTIONNAIRES
We hope this helps self-representing litigants to fill out their Directions Questionnaire. If you have not read the guidance in Form EX305 then we recommend you read this section about Directions Questionnaires at pages 2 & 3.
As a LIP, you’ll know that filling out a Directions Questionnaire is complex. For further advice regarding the Form N180, or Form N181, Helix Law can offer initial advice for free. Call us or send an email detailing your query about your directions questionnaire.
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Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.