5.66 Within 28 days of service of the claim form, the defendant should file a defence setting out in sufficient detail which of the facts and contentions of law in the claim form it admits or denies and on what grounds, and on what other facts or contentions of law it relies: Rule 35(1). If the defendant is outside the jurisdiction then the period for filing the defence will be extended so as to accord with the period applicable under the CPR (or equivalent provisions in Scotland or Northern Ireland) in such circumstances: Rule 35(7). Usually this period will be specified in the directions of the Tribunal regarding service out of the jurisdiction: see paragraph 5.56 above. 5.67 The defence should also make observations on the question in which part of the
United Kingdom the proceedings are to be treated as taking place under Rule 18. If there is no dispute between the parties concerning that issue, a simple statement that the defendant agrees with the observations in the claim form will suffice. Failure to make any observations on this aspect will mean the agreement of the defendant will be presumed by the Tribunal.
5.68 The contents of the defence must be verified by a statement of truth signed and dated by the defendant or on its behalf by its duly authorised officer or legal representative: Rule 35(2).
5.69 The defence should contain the same level of detail as required in respect of the claim form and, as far as practicable, annex a copy of every document referred to in the defence.
5.70 Unless the context requires otherwise, the guidance given above in respect of the claim form applies equally to the preparation and presentation of the defence. Overall, the defendant should ensure that there is no unnecessary duplication of material between the claim form and the defence. Rule 35(3) makes clear that it is not necessary to annex to the defence any document which has already been annexed to the claim form.
5.71 The defendant must serve a copy of the defence and annexes on each party at the same time as it files the defence with the Tribunal. The defendant should at the same time send a copy of the defence to the CMA: see paragraph 5.53 above for the CMA’s address for this purpose.
Reply to the defence and further pleadings
5.72 Rule 36(1) allows the claimant, within 21 days of receipt of the defence, to file a reply. However, this is not a requirement. If the claimant does not wish to file a reply, it should inform the Registrar and the other parties of that fact as soon as possible rather than let the 21 day period expire. Similar considerations to those mentioned above in respect of the claim form and defence apply to the preparation and presentation of the reply.
5.73 Following the reply, no further pleadings may be filed by any party without the permission of the Tribunal: Rule 37.
Amendment of pleadings
5.74 Amendment of the claim form can only be made with the written consent of all the parties or with the permission of the Tribunal: Rule 32(1). Rule 32(2) makes provision for certain types of amendment outside the limitation period.
5.75 Amendments of other pleadings may only be made if the Tribunal gives permission in exercise of its general power of case management under Rule 53.
Additional parties and additional claims
5.76 Rule 38 governs the removal, addition or substitution of parties in the proceedings. These changes require the permission of the Tribunal and it will therefore be necessary for any party (whether an existing party or a person seeking to become a party) wanting to make such a change to make an application to the Tribunal. The application should be served on the other parties and any new person whom it is sought to introduce to the proceedings. Rules 38(6) and (7) make clear that the scope for adding or substituting parties is more restricted when a relevant limitation period has expired.
5.77 Rule 39 allows for the possibility of additional claims. The Rule covers both a counterclaim by a defendant against a claimant and claims made by a defendant against a third party (and by that third party against another third party). Any such additional claim has to fall within the ambit of section 47A of the 1998 Act (Rule 39(3)).
5.78 An additional claim will require the permission of the Tribunal unless filed at the same time as the defence (Rule 39(3) and (4)) and will be treated as if it were a claim for the purposes of the Rules: Rule 39(2). Therefore, in respect of an additional claim against a third party, the procedures in respect of the filing and service of a claim have to be observed by the person making the additional claim; and the third party recipient of the additional claim has to file an acknowledgement of service and defence in accordance with the Rules and will become a party to the proceedings. Where the additional claim is a counterclaim by the defendant against the claimant, the claimant has to comply with Rule 35 regarding the filing of a defence.
5.79 Rule 40 sets out the powers of the Tribunal upon receipt of an additional claim. Whether or not the permission of the Tribunal is required to make the additional claim, the Tribunal has power to decide whether the additional claim may be dealt with alongside the main claim or dismissed, or whether it should proceed separately or be transferred to another court: see Rule 40(1)(c) and (d). In deciding whether to exercise its powers under Rule 40(1) with regard to the additional claim, the Tribunal will consider the matters set out Rule 40(2) so as to ensure the whole case is dealt with justly and at proportionate cost in accordance with the governing principle set out in Rule 4(1).
Case management
5.80 Rules 53 to 57 contain case management powers for the Tribunal when dealing with claims for damages. These rules also apply to cases proceeding under the fast-track procedure and to collective proceedings.38
5.81 The Tribunal may at any time, on the request of a party or of its own initiative, at a CMC, pre-hearing review or otherwise, give such directions as are provided for in Rule 53(2) or such other directions as it thinks fit to secure that the proceedings are dealt with justly and at proportionate cost: Rule 53(1).
5.82 Although Rule 53(2) contains a list of types of directions the Tribunal may make, this should be regarded as indicative. As Rule 53(1) makes clear, the Tribunal may make other types of directions if that is necessary or appropriate for the just and proportionate determination of the case. It should be noted that the Tribunal may be pro-active in seeking further information, submissions or documents: Rule 53(3). 5.83 In general, a CMC will be held as soon as practicable after the reply is served (or the
time for service of a reply has expired). This will be an opportunity for the Tribunal to consider with the parties and their legal representatives the future conduct of the case, having regard to the governing principles set out in Rule 4. The matters usually addressed at the first CMC are set out in Rule 54(3). For more information about CMCs, see Section 7 (Case management conferences).
5.84 Where a party wishes to ask the Tribunal to make a direction, it should make a reasoned application supported by any evidence on which it wishes to rely: Rule 53(4)
5.85 Rule 57 sets out the Tribunal’s powers to deal with a failure to comply with its directions. These include the power to debar a party from taking any further part in the proceedings without the permission of the Tribunal and power to make a costs order against a party or its representative.
Disclosure
5.86 Disclosure in proceedings before the Tribunal is not automatic and proceeds on the order or direction of the Tribunal. The only exception is that a party may request disclosure of any document referred to in the pleadings or in witness statements or affidavits or in an expert report: Rule 61.
5.87 In general, the Tribunal will consider at the first CMC whether and when each party should file a disclosure report and, where appropriate, an electronic documents questionnaire, in the form set out in the schedule to CPR Practice Direction 31B. On
consideration of these reports and questionnaires, at a further CMC the Tribunal will determine what disclosure should be provided, having regard to the governing principles as set out in Rule 4. This is an area in which the Tribunal will expect the parties to pay close attention to the requirement of co-operation in Rule 4(7) and to the need to devise a sensible and practical approach to the conduct of the proceedings. The purpose of disclosure is to obtain documentary material that assists in determination of the issues raised by the pleadings and it is not to be used as a weapon in a war of attrition.
5.88 The ambit of the duty to disclose documents is set out in Rule 60(4) to (7). Basically a party has a duty to disclose documents which are or have been in its “control” (a wider term than physical possession). That duty continues until the proceedings are concluded and extends to any documents which come to a party’s notice at any time during the proceedings.
Pre-action disclosure
5.89 An application may be made to the Tribunal for disclosure before any proceedings have started, where the applicant is likely to be a party to such subsequent proceedings and the respondent from whom disclosure is sought is likely to be a defendant: Rule 62. However, such disclosure will only be ordered if it is desirable to dispose fairly of those anticipated proceedings, assist in avoiding them altogether or otherwise to save costs. Any such application must be supported by evidence. The Tribunal is likely to order pre-action disclosure only of specific documents or a very limited category of documents, and it will be alert to reject any purely speculative disclosure requests. The applicant must satisfy the Tribunal that there is good reason why the disclosure requested should not come in the usual way after proceedings have started and the applicant has set out its full case.
Disclosure against non-parties
5.90 A party to proceedings before the Tribunal may apply for an order of disclosure by someone who is not a party of documents likely to support the applicant’s case or adversely affect the case of another party: Rule 63. Such an application must be supported by evidence. As with pre-action disclosure, the Tribunal is only likely to order disclosure of clearly defined documents or a very limited category of documents, and it will have regard to the fact that the person from whom disclosure is sought is not involved in the proceedings. Any such application must be served on the person from whom disclosure is sought, as well as on the other parties. If the Tribunal makes such an order, it may include provision for the payment of the costs incurred by the non-party in making disclosure.
5.91 Rule 64 governs both the procedure for seeking an order to withhold disclosure of a document on the ground of damage to the public interest (Rule 64(1) and (2)) and privilege claims: Rule 64(3). Rule 64(6) indicates how the Tribunal may proceed to decide such matters.
Intervention, consolidation and forum
5.92 Whilst Rule 50 indicates that the intervention procedure can (with modifications) be invoked in the context of a claim under section 47A, it is likely to be confined to cases where a third party can make useful observations to the Tribunal on the broader policy context in which a particular case arises.
5.93 Rule 50(2) makes specific provision for the CMA to make written observations to the Tribunal on issues relating to the application of European competition law and the Chapter I and Chapter II prohibitions. Further, the CMA may, with the permission of the Tribunal, make oral observations on those matters at a hearing. This rule follows Article 15(3) of Regulation 1/2003 and applies the same approach to the relevant provision of national competition law.
5.94 Rules 51 and 52 apply Rules 17 (Tribunal’s power to consolidate proceedings) and 18 (Determination of which part of the UK is to be treated as the forum of the proceedings) to claims under section 47A. See also Section 7 of this Guide.
Summary disposal
5.95 Rules 41 to 44 set out a number of ways in which a claim may be terminated without a settlement or proceeding to a full hearing.
Power to strike out
5.96 Rule 41 provides that the Tribunal may strike out in whole or part a claim at any stage of the proceedings if it considers that: (a) it does not have jurisdiction; (b) there were no reasonable grounds for making the claim; (c) the claim is vexatious; or (d) the claimant has failed to comply with any rule, practice direction, order or direction of the Tribunal.
5.97 This is a severe sanction which the Tribunal will not invoke without hearing the parties. Any application for the Tribunal to exercise its power under Rule 41 should be fully reasoned and supported by evidence. The application should be made when it becomes apparent that grounds for the application exist, which should normally be well before the substantive hearing of the claim.
5.98 Where a claimant fails to comply with a rule, practice direction or order, the Tribunal will not usually exercise its power to strike out the claim without making a further ‘unless’ order giving the claimant an opportunity to remedy the default and thereby avoid the claim being struck out.
5.99 Although Rule 41 applies only to claims (and additional claims: Rule 39(2)), the Tribunal also has power to debar any party that has failed to comply with a direction of the Tribunal from taking any further part in the proceedings: Rule 57(1)(c).
Default judgment
5.100 Rule 42 provides that the Tribunal may of its own initiative or on the application of a party give default judgment (without consideration of the merits) where the defendant has not filed an acknowledgment of service or a defence to the claim or where the claimant has not filed a defence to a counterclaim within the time required by the Rules.
5.101 In most cases, it will be for a party to make an application to the Tribunal for a default judgment. That application should provide proof of service (Rule 42(3)) and should indicate the amount as to damages, costs and interest and any other relief in respect of which the default judgment is sought. If the application relates to only some of the defendants, it should also set out the basis on which the applicant contends that the claim against those defendants can be dealt with separately from the claim against the other defendants: Rule 42(6).
5.102 A default judgment cannot be given where the defendant has made one of the applications listed in Rule 42(2) that has not yet been determined, i.e. where the defendant is disputing the jurisdiction or has applied to strike out the claim or for summary judgment. For Rule 42(2) to apply, the defendant must have filed and served such an application. Mere mention of the intention to make an application in correspondence with the Tribunal or the claimant will not be sufficient.
5.103 If a defendant seeks to set aside a default judgment, it should make a reasoned application supported by evidence.
Summary judgment
5.104 Summary judgment may be given against a claimant or a defendant on the whole of a claim or a particular issue if the Tribunal considers that the relevant party has no real prospect of success in relation to the claim or that issue and if there is no other compelling reason why the case or issue should await determination at a substantive hearing: Rule 43.
5.105 The broad purpose of summary judgment is to allow a claim or an issue as to which there is a clear and unanswerable case to be disposed of without the need to devote further resources to the proceedings through to a final substantive hearing. It is a mechanism for ensuring that the case is handled in a proportionate way in order to satisfy the governing principles set out in Rule 4(1).
5.106 Ordinarily, the Tribunal would not expect to receive an application by a claimant for summary judgment until the defendant has filed an acknowledgment of service. If the defendant intends to apply for summary judgment against the claimant then that application should be filed after filing an acknowledgment of service and preferably at the same time as the defence. An application for summary judgment should be filed with the Tribunal and served on the other party at the same time. The application should append a draft of the order being sought and state the reasons for the application. It should include a statement of belief that the other party has no real prospect of succeeding and that the applicant knows of no other reason why the matter should proceed to a final hearing. The application may be supported by one or more witness statements, but the Tribunal would not ordinarily expect oral evidence to be given at the hearing of the application.
Withdrawal of the claim
5.107 A claimant can only withdraw its claim with the consent of the defendant or with the permission of the Tribunal: Rule 44. If the parties agree that the claim should be withdrawn, they should submit an agreed draft order to the Tribunal for its consideration.
Settlement Offers
5.108 Any party to proceedings may make an offer to one or more other parties to settle the case as between them in whatever way it chooses. As noted above, the parties may by consent seek an order for withdrawal of the claim pursuant to Rule 44. Alternatively, they may by consent apply for an order that the proceedings are stayed except for the purpose of giving effect to agreed terms of settlement: Rule 53(2)(k).39
5.109 However, Rule 45 introduces a special regime which carries potentially significant implications for costs if an offer of settlement that complies with its requirements is either accepted or not accepted. Such an offer is referred to as a “Rule 45 Offer”. 5.110 A Rule 45 Offer may be made by either a claimant or a defendant. However, the
regime does not apply to collective proceedings and it is accordingly not possible to make a Rule 45 Offer in those proceedings. It will be possible to make an offer to settle such proceedings by way of a Calderbank letter (i.e. a written offer made “without prejudice save as to costs”).
5.111 The regime is modelled on CPR Part 36 and will be interpreted accordingly, but there are some important differences which are highlighted below.
5.112 To constitute a Rule 45 Offer, the offer must comply with the provisions of Rule 45(3). In particular, the offer must be in writing and state expressly that it is intended to be a Rule 45 Offer. If the terms of the offer are unclear, the offeree may within seven days ask for clarification; and if that is not provided the offeree may apply to the Tribunal for an order to that effect: Rule 46.
5.113 There are particular provisions and restrictions regarding the withdrawal or amendment of a Rule 45 Offer: see Rule 47.
If the Rule 45 Offer is accepted
5.114 The costs consequences of acceptance of a Rule 45 Offer are set out in Rule 48.