Adam Taylor explains how obtaining directions can help to secure a damages assessment the painless way


A claimant has suffered personal injury. Proceedings are issued and served. In comes the defence and... it contains an admission of liability. What now?


The first step is to subject the apparent gift-horse to a dental examination. Does the defendant admit not only negligence but also causation? If he does, a formal application can be made for 'judgment for an amount to be decided by the court' rule 12.5(3) of the Civil Procedure Rules 1998.



'It's Napoleon, Your Grace - requesting a battle management telephone coference'

If the defendant denies all damage, judgment on the admission is not available (Parrott v Jackson [1996] TLR 80, CA), but, if there is no real prospect of a successful defence on liability, an application may be made for summary judgment. Better yet, the claimant's solicitor could write to the court in an appropriate case, pointing out that, notwithstanding the defence, some damage must have been caused and inviting the district judge to give summary judgment of his own initiative (CPR rules 3.3 and 24.1).


Once the claimant has a judgment, the next step is to obtain directions. CPR practice direction 26, paragraph 12 tells the solicitor what to do. The difficulty here is that the directions depend on the extent to which damages are in dispute. Unless the claim for personal injury is for not more than £1,000 (in which case it should be allocated to the small-claims track), paragraph 12.3 of the practice direction impacts. It requires the court to allocate the case only if 'the amount payable appears to be genuinely disputed on substantial grounds' or the case is 'not suitable to be dealt with at a disposal hearing'. A disposal hearing is defined by paragraph 12.4(1)(a) as one lasting not more than half-an-hour. So, to determine whether allocation is necessary, the claimant needs to find out from the defendant to what extent he disputes the claimant's loss.


The claimant can, at the same time, advance the case by sending draft directions and inviting the defendant's approval within, say, 14 days. The draft directions will follow the usual pattern: allocation (if it is likely to be appropriate), disclosure, inspection, statements, expert evidence, pre-trial checklists and, if practicable, trial. The appendix to practice direction 28 contains useful model clauses. If it is uncertain whether there will be a substantial dispute, allocation may be postponed; it is a good idea to record the postponement in the order, lest allocation be overlooked altogether. Disclosure by the defendant will often prove unnecessary and can be dispensed with by agreement.


Probably, only the claimant and his witnesses will need to serve statements. If further expert evidence is needed, a provision for joint instruction should be included.


There is no point in listing a case for trial unless one knows how long it will last. If the time-estimate is too long, the court's time will be wasted; if it is too short, an application for an adjournment will be needed - and may be refused (see paragraph 5.4(6) of PD 28, and paragraph 7.4(6) of PD 29). For the same reason, parties should not ask the court to list a case for trial unless they are sure they will be ready; better to provide for the trial date to be fixed when all the preliminary directions have been obeyed.



When requesting a trial date or window, it is a good idea to specify the level of judge who should hear the assessment. District judges have jurisdiction even if the case has been allocated to the multi-track, but large or complex claims and long trials should generally be heard before a circuit judge (Sandry v Jones [2000] The Times, 3 August, CA). If in doubt, a request can be made for the case to be listed before a district judge or circuit judge and the former will decide who can best hear it.



And if the defendant fails to respond to the claimant's overtures? The claimant's solicitor should write to the court to explain that he has sought the defendant's approval to draft directions, but not received a reply, and ask the district judge to approve the directions of his own initiative. The draft order should be revised so that it begins: 'The court directs of its own initiative'; and concludes: 'Any party affected by this order may apply to have it set aside, varied or stayed within seven days' (CPR rule 3.3(5)(b)).


Most disagreements over directions require a case management conference. Again, there is no need for a formal application; a letter explaining the difficulty and inviting the district judge to list a hearing of his own initiative will usually suffice (CPR rule 23.3(2)(b)). The hearing can take place by telephone provided the district judge agrees and all the parties are represented and consent (see practice direction 23, paragraphs 6.2 and 6.3). If a telephone conference is fixed, the parties should ensure that the judge has an agreed bundle and draft directions beforehand (see paragraph 6.5 of PD 26).


Expert evidence is often the sticking point. Part of the court's duty of case management involves restricting expert evidence 'to that which is reasonably required to resolve the proceedings' (CPR rule 35.1).



In Daniels v Walker [2000] 1 WLR 1382, Lord Woolf said: 'In a substantial case... the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue... If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence... It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert.'



Citing this guidance will often persuade the district judge to appoint a joint expert and, in some cases, may persuade him to refuse permission for any other expert evidence.



The fact that liability is admitted does not mean that victory is certain. The defendant can still argue that he did not cause a particular loss or that the claimant's own negligence contributed to the accident (Lunnun v Singh [1999] The Times 19 July, CA). But what Wellington said of military operations is also true of litigation - 'time is everything'.



The solicitor who keeps control of his case, moving it forward briskly and at his, not his opponent's pace, will be well-placed to win the final battle.


District Judge Adam Taylor sits at Horsham County Court