The judgment of the Hon Mrs Justice Asplin DBE given today in Lictor Anstalt -v- MIR Steel UK Ltd  EWHC 3316 (Ch) contained a consideration of the Denton criteria in relation to late service of witness evidence and documents. There is an extensive review of the principles relating to relief from sanctions and some lessons of general importance.
The action was about whether chattels had passed to the defendants upon sale of a steel mill. At the end of the trial, after the close of evidence, the claimant made an application to adduce additional evidence.
Applications after the close of evidence
- After the close of the evidence on day 7 of the trial, Mr Braithwaite made an application seeking an order that he be permitted to rely upon the witness statement of Gerhard Meier and/or permission under CPR 33.6 to rely on the exhibited documents pursuant to section 9 of the Civil Evidence Act 1995 and/or for relief from sanction under CPR 3.9. It was accompanied by Herr Meier’s witness statement dated 17 July 2014 and exhibited documents together with two hearsay notices pursuant to section 2 Civil Evidence Act 1995 and CPR 33.2. One was expressed to relate to the “certified copies of public documents obtained from the Public Commercial Register in Vaduz, Liechtenstein” and the other was in respect of Herr Meier’s witness statement.
- The need for the application arose as a result of the indication by Mr Downes QC on behalf of Mir made in opening, that the Claimants had failed to prove their case as to the validity of the April Agreement and, in particular, as to the authority of Professor Dr Dr Batliner to sign the April Agreement on behalf of Lictor. As a result, documents were disclosed over the weekend and on Monday 14 July 2014, the fourth day of the trial, the issue was ventilated before the court and Mr Braithwaite accepted that it might be necessary for him to make an application in order to seek relief from sanction in order to rely upon a new witness statement at a late stage. In fact, as I have said, the application was made after the close of evidence and before closings, on day 7 of the trial which had been agreed would cause least disruption.
- The application was supported by the third witness statement of Mr Foggo of Fox Williams, solicitors for the Claimant. He accepts that if the question of the authority of Professor Dr Dr Batliner is in issue in the proceedings, the evidence of Herr Meier ought to have been provided at the exchange of witness statements. In summary, he explains that if, in fact, the question of authority is in issue, it had not been appreciated because of the way in which the Amended Defence had been pleaded and that it did not appear in the agreed List of Issues. He says therefore, that the breach in failing to adduce Herr Meier’s witness statement, if it is one, is not serious or significant and causes no real prejudice to the Defendant and does not have a significant effect on the efficient conduct of the litigation at proportionate cost, or to litigation in general.
- Paragraph 1 of the Amended Defence makes clear that Mir takes issue with the April Agreement and refers to it merely as a “Letter”. Paragraphs 14 and 15 of the Amended Defence address paragraphs 13, 14 and 15 of the Particulars of Claim. Paragraph 13 of the Particulars of Claim related to advice given in February 2000 and referred to a decision having been made that Lictor would retain ownership of the “Equipment” which is a reference to the HSM. Paragraph 14 set out the relevant terms of the April Agreement and paragraph 15 dealt with the Equipment and the missing schedule to the April Agreement.
- Paragraphs 14 and 15 of the Amended Defence are in the following form:
“14. As to paragraph 13 of the Particulars of Claim, the First Defendant repeats paragraph 13 herein. Save as aforesaid no admissions are made as to paragraph 13.
15. As to paragraphs 14 and 15 of the Particulars of Claim:
a. It is admitted that the contents of the letter of 3rd April 2000 (“the 3rd April 2000 Letter”) are accurately set out at paragraph 14. It is denied that the 3rd April 2000 Letter constitutes a legally enforceable agreement.
b. It is admitted that the “equipment” referred to in the 3rd April 2000 Letter is the Equipment which is the subject of this dispute. It is denied however that as at 3rd April 2000 the equipment was a chattel which vested in Lictor. It had already become part of the Site which was owned by Alphasteel.
c. It is not admitted that there was any schedule to the 3rd April 2000 Letter. The First Defendant has not seen such a document.
d. It is admitted that the 3rd April 2000 Letter was drafted on the mistaken belief that the Equipment was a chattel which could remain the property of the Claimant.
e. Save as aforesaid paragraphs 14 and 15 are not admitted.”
- They refer back to paragraph 12 in which the April Agreement was said to be void for three reasons. Paragraph 12 is as follows:
“12. The First Defendant denies that as at 3rd April 2000 the Equipment existed as a chattel. In the premises any agreement as to the ownership of the Agreement was void:
a. By reason of a fundamental mistake at common law as to the existence of the subject matter of the purported agreement: the purported agreement proceeded on the basis that the Equipment was a chattel. However, as at the time of the 3rd April 2000 Letter, annexation had already occurred in relation to the Equipment and it was no longer a chattel. Accordingly the state of affairs upon which the purported agreement is based had already ceased to exist by 3rd April 2000.
b. For total failure of consideration: by the time of the 3rd April 2000 Letter, the Claimant had no rights to the Equipment and it had already become a part of Alphasteel’s land. Therefore the Claimant gave no consideration for the purported agreement.
c. Alternatively if the facts giving rise to annexation were fully known to the parties and the legal effect of the said annexation was fully known: the 3rd April 2000 Letter was a sham entered into for the purposes of misleading the tax authorities as to the true legal owner of the Equipment.”
- Mr Downes on behalf of Mir says that it is clear that there is a non-admission at paragraph 15(e) of the Amended Defence made in the context of an allegation that the April Agreement was a sham for tax purposes and accordingly, that without proof of Professor Dr Dr Batliner’s authority amongst other things, the Claimants have not proved their case. Mr Downes emphasises that he was not in a position to put forward a positive case as to the creation and execution of the April Agreement, nor was he seeking to do so but that it falls to the Claimant to prove their case.
- The witness statement of Gerhard Meier upon which the Claimants seek permission to rely sets out that Herr Meier and Herr Hermann Hauer have been directors of Lictor since 20 December 2001 with “a single signatory right” and that they replaced Professor Dr Dr Batliner who was the sole director of Lictor from 21 December 1998 until 20 December 2001. Paragraphs 7, 8 and 9 of the witness statement are in the following form:
“7. As an officer of Lictor Anstalt, I confirm that the documents exhibited at GM1 are certified copies which I caused to be obtained on 15 and 16 July 2014 from the Public Commercial Register in Vaduz of:
(1) An extract of Lictor Anstalt’s Public Commercial Register of the Principality of Liechtenstein as at 3 June 2008;
(2) The Articles of Lictor Anstalt dated 13 December 1983; and
(3) The Articles of Lictor Anstalt dated 17 April 2000.
8. I confirm that these documents form part of the company records of Lictor Anstalt.
9. Page 39 of GM1 confirms that Professor Dr Dr Batliner was Lictor Anstalt’s sole director with a single signatory right from 21 December 1998 until 20 December 2001 and that Mr Hauer and I took over on 20 December 2001.”
- It is not in dispute that it is necessary to obtain the permission of the court to rely upon a witness statement served out of time: CPR 32.10 and that at the latest, a hearsay notice ought also to be served with the witness statements: CPR 33.2(4)(a). Furthermore, it is agreed that CPR 3.9 applies. The rule is as follows:
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.”
- The most recent authority is Denton & Ors v TH White Ltd & Ors; Decadent Vapours Limited v Bevan & Ors; Utilise TDS Limited v Davies & Ors  EWCA Civ 906. The most relevant passages for these purposes are from the judgment of the Master of the Rolls and Vos LJ as follows:
24. We consider that the guidance given at paras 40 and 41 of Mitchell remains substantially sound. However, in view of the way in which it has been interpreted, we propose to restate the approach that should be applied in a little more detail. A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”. We shall consider each of these stages in turn identifying how they should be applied in practice. We recognise that hard-pressed first instance judges need a clear exposition of how the provisions of rule 3.9(1) should be given effect. We hope that what follows will avoid the need in future to resort to the earlier authorities.
The first stage
25. The first stage is to identify and assess the seriousness or significance of the “failure to comply with any rule, practice direction or court order”, which engages rule 3.9(1).That is what led the court in Mitchell to suggest that, in evaluating the nature of the non-compliance with the relevant rule, practice direction or court order, judges should start by asking whether the breach can properly be regarded as trivial.
. . . . . . . Such semantic disputes do not promote the conduct of litigation efficiently and at proportionate cost. In these circumstances, we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant. It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”. Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious. The most obvious example of such a breach is a failure to pay court fees. We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance. We recognise that the concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance, but we hope that, assisted by the guidance given in this decision and its application in individual cases over time, courts will deal with these applications in a consistent manner.
27. The assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that may have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulter’s previous conduct in the litigation (for example, if the breach is the latest in a series of failures to comply with orders concerning, say, the service of witness statements). We consider that this is better done at the third stage (see para 36 below) rather than as part of the assessment of seriousness or significance of the breach.
28. If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.
The second stage
29. The second stage cannot be derived from the express wording of rule 3.9(1), but it is nonetheless important particularly where the breach is serious or significant. The court should consider why the failure or default occurred: this is what the court said in Mitchell at para 41.
. . . . .
The third stage
31. The important misunderstanding that has occurred is that, if (i) there is a non-trivial (now serious or significant) breach and (ii) there is no good reason for the breach, the application for relief from sanctions will automatically fail. That is not so and is not what the court said in Mitchell: see para 37. Rule 3.9(1) requires that, in every case, the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application”. We regard this as the third stage.
32. We can see that the use of the phrase “paramount importance” in para 36 of Mitchell has encouraged the idea that the factors other than factors (a) and (b) are of little weight. On the other hand, at para 37 the court merely said that the other circumstances should be given “less weight” than the two considerations specifically mentioned. This may have given rise to some confusion which we now seek to remove. Although the two factors may not be of paramount importance, we reassert that they are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered. That is why they were singled out for mention in the rule. It is striking that factor (a) is in substance included in the definition of the overriding objective in rule 1.1(2) of enabling the court to deal with cases justly; and factor (b) is included in the definition of the overriding objective in identical language at rule 1.1(2)(f). If it had been intended that factors (a) and (b) were to be given no particular weight, they would not have been mentioned in rule 3.9(1). In our view, the draftsman of rule 3.9(1) clearly intended to emphasise the particular importance of these two factors.
33. Our view on this point is reinforced by the fact that Sir Rupert recommended at paragraph 6.7 of Chapter 39 of his report that rule 3.9 should read as follows, including a factor (b) referring specifically to the interests of justice in a particular case:-
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances including –
(a) the requirements that litigation should be conducted efficiently and at proportionate cost; and
(b) the interests of justice in the particular case.”
This recommendation was rejected by the Civil Procedure Rule Committee in favour of the current version. In our opinion, it is legitimate to have regard to this significant fact in determining the proper construction of the rule. It follows that, unlike Jackson LJ, we cannot accept the submission of the Bar Council that factors (a) and (b) in the new rule should “have a seat at the table, not the top seats at the table”, if by that is meant that the specified factors are not to be given particular weight.
34. Factor (a) makes it clear that the court must consider the effect of the breach in every case. If the breach has prevented the court or the parties from conducting the litigation (or other litigation) efficiently and at proportionate cost, that will be a factor weighing in favour of refusing relief. Factor (b) emphasises the importance of complying with rules, practice directions and orders. This aspect received insufficient attention in the past. The court must always bear in mind the need for compliance with rules, practice directions and orders, because the old lax culture of noncompliance is no longer tolerated.
35. Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted.
36. But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance.”
- As I have already mentioned, Mr Braithwaite says that it was believed that the challenge to the enforceability of the April Agreement was solely on the grounds set out in paragraph 12 of the Amended Defence. Nevertheless, he says that the breach if it is one, is not serious or significant because he merely seeks to put in evidence as to incontrovertible fact which would not preclude Mr Downes from taking any points in relation to the adequacy or otherwise of the evidence tendered. He says that it is not necessary for Herr Meier to be cross examined. He was not an officer of Lictor at the time the April Agreement was executed and accordingly, could not be of assistance. He says that the reason for the breach is the failure to appreciate the non-admission and when taking all the circumstances into account including the matters set out at (a) and (b) of CPR rule 3.9 it is clear that the court should proceed on the basis of the proper factual footing and that it is in the interests of justice that it should do so.
- In the alternative, it is said that the documents themselves should be admitted by virtue of section 9 Civil Evidence Act 1995 which provides as follows:
“(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.
(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.
For this purpose—
(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him; and
(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.
(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.
(4) In this section—
“records” means records in whatever form;
“business” includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
“officer” includes any person occupying a responsible position in relation to the relevant activities of the business or public authority or in relation to its records; and
“public authority” includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.
(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records.”
- Mr Braithwaite says that Lictor is a “business” within the definition in section 9(4) CEA 1995 and that the documents are “records” within the definition in the same sub-section. As a result of a combination of section 9 and CPR 33.6(2) they should be admitted. He says that it is the just thing to do, no prejudice is caused as a result, the reason for the failure, being the misunderstanding, is a good one and that neither the default nor the admission of the documents at this stage will have a significant effect upon the efficient conduct of the litigation.
- Mr Braithwaite also says that the existence of a discretion in the court contained in sub-section 9(5) of the CEA 1995 does not render the documents inadmissible nor would Mir be prevented from making such an application within the present timetable of the trial, were they admitted. He says that the suggestion that Mir might seek to serve a notice to admit is artificial and that Mir would not be precluded from obtaining advice as to Liechtenstein law on the very narrow point in issue, in the time available. If they wish to rely upon such advice an application could be made in closing.
- Further, Mr Braithwaite submits both under this head and in relation to Herr Meier’s witness statement that the procedural history of this matter including the adjournment granted at the end of 2012 or the beginning of 2013 is irrelevant and in any event, the precise details are in dispute. This concerned an adjournment caused by Mir’s application shortly before the trial date in January 2013. It is said by Mr Downes that the adjournment at Mir’s expense, caused by the admission of further witness statements on Mir’s behalf was obtained on the premise that the Claimant was ready for trial at that stage which now proves to be incorrect. He also refers to the fact that security for costs will be inadequate if the new evidence is admitted and as a result, the trial is extended.
- In relation to the witness statement, Mr Downes says first that the issue of Professor Dr Dr Batliner’s authority arises quite clearly on the pleadings and that the failure to serve Mr Meier’s witness statement at the appropriate time, some 19 months ago is serious and significant. He says that this is all the more so because no one has given direct evidence on behalf of the Claimant in relation to the formation and execution of the April Agreement. He also says that his clients are dissatisfied by the failure to produce any documentation from Lictor in relation to the April Agreement to which Mr Braithwaite counters that the issue has not been raised in correspondence or by way of an application for specific disclosure.
- In any event, Mr Downes says that in that context, if Herr Meier’s witness statement were admitted at this late stage, Mir should not effectively be shut out but would be entitled to consider whether to apply to cross examine the witness and to seek to call expert evidence in Lichtenstein law, and as a result serious disruption would be caused to the trial timetable.
- In relation to section 9 Civil Evidence Act 1995, in his written submissions, in summary, Mr Downes contended that Lictor was not a business within the meaning of section 9, the documents were not records belonging to Lictor, that pursuant to section 9(5) the court may dis-apply the procedure and that the process does not render the record admissible as to the proof of its contents. Mr Downes submits therefore, that the breach is substantial and serious, the reason is not a good one and that when taking into account all the circumstances including those set out in (a) and (b) in CPR 3.9, given the disruption which would be caused, permission should not be granted.
- First, in my judgment, given the shape of the pleadings, it seems to me that the non-admission at paragraph 15(e) put the validity of the April Agreement in issue and that accordingly, it is for the Claimant to prove the necessary elements of a valid agreement. This includes the authority of Professor Dr Dr Batliner. This is despite the form of paragraph 17(c) of the Amended Defence which states that if the April Agreement is not void it only created rights in personam as between the parties. It seems to me that this is directed at paragraph 17 of the Particulars of Claim and does not derogate from the non-admission contained in paragraph 15(e). Accordingly, in my judgment, issues concerning the creation and formation of the April Agreement were and are in issue. This is consistent with the evidence of Mr Drennan and Mr Braithwaite’s acceptance that the circumstances surrounding the April Agreement are in issue and that it was for that reason that Mr Drennan was called to give evidence.
- I will take the application in relation to Herr Meier’s witness statement first. The first stage is to consider whether the failure to comply with the rules in this regard is serious and significant. It seems to me that it is. The witness statement and the hearsay notice in respect of it ought to have been served some 19 months ago. Their production at this very late stage inevitably disrupts the conduct of this litigation. I accept Mr Downes’ submission that he is entitled on behalf of Mir to consider whether to make an application to cross examine Herr Meier, an officer of Lictor, appointed in 2001 and to seek to obtain and to adduce expert evidence as to Liechtenstein law. I do not consider such matters to be artificial. Although Herr Meier had not been appointed at the date of the April Agreement, were permission given for his cross examination there are numerous issues which might be addressed. As a result, it seems to me that it is impossible to characterise the failure to comply with the rules as immaterial in the sense of causing no disruption to the conduct of the litigation.
- The reason for the failure has already been canvassed. Although the failure to analyse the pleading adequately may well have been unintentional, it seems to me that a mistake of this kind cannot be characterised as a good reason. The Claimant has brought the position upon itself.
- Lastly, it is necessary to consider all of the circumstances of the case so as to enable the application to be dealt with justly including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. In this regard, it seems to me that although the failure may have been as a result of inadvertence and it is said that Mir failed to draw attention to the issue until Mr Downes opened the case, in the circumstances in which no witnesses involved directly with Lictor, other than Mr Hosseini were called to give evidence, it is not appropriate that Mir should be shut out of the opportunity to seek to cross examine Herr Meier and if necessary to seek to rely upon expert evidence as to the necessary elements when establishing authority to act on behalf of an Anstalt. Such legitimate steps will inevitably jeopardise the trial timetable and as a result, jeopardise the efficient conduct of litigation in general at a proportionate cost. Accordingly, in my judgment the relevant factors militate against granting relief from sanction in this case and I refuse to do so in relation to Herr Meier’s witness statement.
- What then of the alternative application under section 9 Civil Evidence Act 1995? First, in my judgment, there is nothing to suggest that Lictor does not fall within the wide definition of “business” for the purposes of section 9. Are the documents themselves “records” however? All of the documents have been obtained from the Trade Register of the Principality of Liechtenstein. It is accepted that as Herr Meier is not an officer of the Register Lictor cannot seal the records on the basis that they are the records of a “public authority” under section 9 (even assuming a foreign body to be a “public authority” for the purposes of the rule). Further, it seems to me to be relatively clear that the extract from the register itself is not a record of the business. It is a record about the business, kept by the public authority in Vaduz. Accordingly, it seems to me that section 9 cannot be relied upon in relation to the extract from the register and therefore, it is not necessary to consider the three stage test in that regard.
- What of the certified copies of the Articles of Association of Lictor which are kept on the register? It seems to me that they fall within the wide definition of “records”. Although they may not be compiled on a regular basis, the Articles of Association are a central record of the way in which the business of Lictor is to be and ought to have been conducted. Does it matter that the certified copies were obtained from the Trade Register? In my judgment, the repository does not affect the fact that the Articles of Association themselves belong to Lictor. Furthermore, for this purpose, I am satisfied that paragraph 8 of Herr Meier’s witness statement amounts to a certificate signed by him as an officer of Lictor to the effect that the Articles form part of the records of that business.
- What then of the threefold test? In relation to the documents, the Claimant has failed to give notice for the purposes of CPR 33.6 and in relation to the hearsay notice necessary in order to seek to rely upon the statements contained in the documents, has failed to comply with CPR 33.2. Although the consequences are different, the date by which the Claimant ought to have complied in both cases was the latest date for serving witness statements. Therefore, the length of the delay is 19 months in this regard also. Once again it seems to me that given the length of the delay and the potential for disrupting this litigation and litigation in general, it cannot be characterised as other than serious and substantial.
- The reason for the failure is the same as in relation to Herr Meier’s witness statement.
- What of all of the circumstances of the case so as to enable the application to be dealt with justly including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders? In my judgment, despite the lengthy delay in dealing with the point and the need to observe the rules, it seems to me that taking all matters into consideration including the efficient conduct of litigation and the justice of the matter, it is appropriate to grant relief from sanction and permit reliance upon the Articles of Association in their various forms. Any application which Mr Downes chooses to make in relation to the documents pursuant to section 9(5) can be accommodated within the written and oral closings and it seems to me that the very limited issue which may arise from the Articles of Association and be pursued as to Liechtenstein law can be dealt with in the same way. Accordingly, having given appropriate weight to limbs (a) and (b) in CPR 3.9, in all the circumstances, including the way in which this issue has come to the fore, I grant relief from sanction in relation to the three iterations of the Articles of Association exhibited to Herr Meier’s witness statement.
- The application to rely on the witness evidence served late was refused.
- The application to rely on the documents served late was allowed.
This case highlights the importance of considering the issues raised by the pleadings at an early stage. Consider what issues are raised in the pleadings, what is in issue and what needs to be established at trial.