Using Part 18 Requests to Create Doubt in your Opponent’s Mind

Part 18 Requests for Further Information or “Interrogatories” as they were in their former life, are great tools for disarming your opponent.

It appears that litigators are waiting until the claim has progressed a long way into Directions, before thinking about using Part 18.

It’s a wonderful tool! Let us take a look at what it allows you to do:

Part 18 

Under CPR rule 18.1, the court may at any time (my emphasis) order a party to clarify any matter which is in dispute in the proceedings or give additional information in relation to any such matter whether or not the matter is contained or referred to in a statement of case by filing and serving a response within the time specified by the court.

Why is CPR Part 18 so fantastic?

Because you can sow the seeds of doubt very early on. It is about creating the illusion of RISK to an opponent.  Risk = settlement.

It is important to remember the Part 18 Reply must be signed off by a statement of truth. You can therefore raise all sorts of questions that your opposing solicitor’s lay client will see.

The other side’s solicitor cannot merely bat it away and hide it from their client. This can give rise to questions from their client such as “oh, but what about…”, which is when the other side starts to feel they are on shaky foundations.

What else is so good about it?

Quite simply, there is a practice direction. Stick to it and you will be able to get an Order, if your opponent does not want to play ball.

  1. Draft your questions and serve with a request for a response within 21 days. There is no minimum time period, but 14 days is a guideline minimum, with industry practice being around 21-28 days, depending on the information sought and breadth of the request.

  2. If you are mischievous, serve a Part 36 offer with your Part 18 request. They may want to settle instead of answering your (calculated) questions.

  3. If there is no response, make an application to the Court for an Unless Order.

  4. You are likely to succeed if you have followed the practice direction. Plus costs, naturally.

Get your punches in early

If you ask for a lot of information, your opponent may just say in response: “this request is premature; the information will come out in [disclosure/witness evidence/expert evidence]”

Tough luck!  The other side will counter this with:

“if it will come out in any event, then we should do it now, in the interest of minimising costs”

Costs will rule the day. CPR r 1.1 will reign supreme.

Hints and tips

  • If there is either a voluminous or pithy Particulars or Defence, you are better placed to get your Part 18 request.  A standard 4-5 page pleading is less likely to succeed. On extensive pleadings, you will claim that you require specificity to distinguish the “waffling”; for shorter pleadings you can aver that it lacks particularisation to prepare your position.

  • Lead them towards introducing or conceding points; following which you can make an application to strike out some of their statement of case, or make them amend their pleadings.

  • As the old title used to be, use it as an “interrogatory” – ask questions they do not want to answer. Focus upon how they are to deal with their weaknesses (e.g. request for details of previous incidents).

  • Don’t try to use it as an effort to discredit a witness or ask for information that is not relevant to the key issues of the case.

  • You can raise a question even if what it concerns it not in dispute. This has to be cutely phrased, and designed to enquire if something is or is not in agreement.

  • A great time to make a Request is immediately following disclosure.

  • Accompany your request with a short letter explaining why your client needs this information. This letter is for the benefit of the Court reading it at your application. It should never be to assist your opponent!

What is the “Golden Rule”?

Rarely ask a question that you want to be answered!

While in fraud cases, you may wish to gain useful information, in the majority of cases you will be looking to expose weaknesses in your opponent’s case, and letting them know you are going to make things very difficult for them.

Part 18 is seen at its best when you have reasonable grounds for suspecting that the other side is holding something back.

Over and out.

Legal Orange.

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