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1. What is a Part 18 request for further information?
1.1 A Part 18 requests for further information (RFI) is one of the tools in a litigators armoury in which to advance its claim, defence or counterclaim. It is a procedure in civil litigation used to get a better understanding of the case being made by the party receiving the request. It is called Part 18 RFI because that is the number where you can find the rules for this procedure in the White Book Civil Procedure Rules, the bible for UK litigation practitioners. The White Book is updated every year. You can also find the Civil Procedure Rules online.
2. Procedure for Part 18 requests for further information
2.1 The preliminary request
The requesting party should write to the receiving party asking for the information to be provided voluntarily within a reasonable time before an application to the court is made.
2.2 Timing of RFI
An RFI can be deployed at any stage in the proceedings. The court can within its powers order a party to provide further information at any stage (CPR 18.1(1)) and can also make an order of its own initiative (CPR 3.3(1)).
2.3 Small track claims
RFI do not apply in small claims. The court in a small claim has powers of its own initiative to order an RFI, (CPR 27.2(1)(f)). The fast track and multi-track standard directions contain a direction for requests for further information (CPR PD 28, para 3.7(2) and CPR PD 29, para 4.8(2)).
3. Strategy – In what circumstances is an RFI used?
3.1 Where a statement of case i.e. claim form, of claim, a defence, Part 20 claim (counterclaim), or reply to defence is received which has not set out the case advanced by either claimant or defendant an RFI can be used with devastating effect not just to seek clarity but to expose the inherent vulnerability of the case being advanced CPR 18 (CPR 18.1(1)).
3.1.1 When it should be used
RFI is best used in matters were the opponents’ case is very vague and it is obvious information is being deliberately withheld, asking a series of detailed questions at an early stage can cause glaring inconsistencies in the arguments advanced by the receiving party at a future point in the proceedings and will allow the sending party to narrow down the live issues in the case. The intention is to allow the sending party to prepare its case or to better understand the opponents case (CPR PD 18, para 1.2). An RFI can effectively draw out the opponent’s position in circumstances where the receiving party is deliberately withholding information to gain a tactical advantage.
3.1.2 When caution should be exercised
You should think carefully about using an RFI where there are real disputes of fact based on actual evidence. In such cases the RFI could serve only to enable the receiving party to strengthen its case or to reveal the strategy of the requesting party too early on.
4. RFI used in conjunction with disclosure and inspection
4.1 Information requested may not be confined to asking for clarification of vague or incomprehensible statements or to provide additional information to matters stated in a statement of case, it could also be requesting information regarding a matter that is not contained or referred to in a statement of case (CPR18.1(1)(a) and (b).
4.1.1 RFI’s can be used very effectively with Part 31 Disclosure and Inspection of Documents. For example, the response to the RFI can indicate the existence of evidence that was not mentioned in the statement of case. The requesting party can request any document disclosed by the other party. The other party discloses a document by stating that the document exists or has existed (CPR 31.2). Pursuant to CPR 31.14, a party may inspect a document mentioned in, inter alia (CPR 31.14(1)(a) to (d), a statement of case.
4.1.2 Any response given under CPR 18 is a statement of case (Interpretation CPR 2.3). The requesting party has a right to inspect such document simply because it is mentioned in the response to RFI whether a list of documents have been served or whether pleadings are closed. Practice direction 31B governs disclosure of electronic documents https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31/pd_part31b . Electronic documents are included within the definition of documents under CPR 31.4. Metadata is included within the scope of electronic documents.
5. When Are RFI’s Unacceptable?
• When the RFI us oppressive, unreasonable and/or disproportionate in terms of scope and costs. (CPR PD 18, para 1.2) RFI must be ‘reasonably necessary and proportionate (see Stocker v Stocker) (see Deutsche Bank AG, London Branch v CIMB Bank Berhad);
• When the RFI is simply a fishing exercise (see Mireskandari and Barness);
• When the RFI is used simply to challenge the credibility of a witness;
• When the RFI is irrelevant to the issues in dispute. Must be ‘strictly necessary to understand another party’s case’ (see Vava v Anglos American ); and
• When the timing of the RFI is inappropriate. (see National Grid Electricity Transmission v ABB).
By Peter Adediran
17 06 2018
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