Once the you have struggled through Stack v Dowden and got to grips with its application to your client’s case, you will then struggle to decide whether to apply under Part 7 or Part 8 of the C.P.R. to the case.
Part 8.2 provides that Part 8 proceedings are reserved for cases which require the court to come to a decision on questions which are unlikely to involve any factual dispute.
Part 64 of the C.P.R. applies to claims arising in the execution of a trust which by C.P.R. Part 64.3 must be made by the issue of a claim form under Part 8.
When a T.O.L.A.T.A. application is brought under Part 8 on the basis that a factual dispute is unlikely, if the defendant believes that it is inappropriate because there will be a substantial dispute as to the facts, he must state his reason when filing his acknowledgment of service.
In reality cohabitation cases are likely by their very nature to involve significant disputes as to the facts of the case. If such differences are identified in pre-action negotiations, the proper course is to commence proceedings using Part 7 of the C.P.R.
The difference between the Part 7 and Part 8 procedure is similar to the difference between the old writ and originating summons procedures in the days before the C.P.R. The first is to resolve issues of fact and the second to determine the answer to questions or to seek a remedy where there is no dispute as to fact. In outline the Part 7 procedure involves the issue of a claim form, the service of a particulars of claim and defence, followed by disclosure, the exchange of witness statements and the trial. Under Part 8 the claimant serves with the claim form his evidence. When the defendant files his acknowledgment of service he must serve his evidence at the same time.
When drafting a particulars of claim under Part 7 it is important to set out the facts relied upon to show why it is said that a trust exists, be it, for instance, constructive, resulting or by estoppel. The witness statement must deal with all the factors set out in the judgement of Lady Hale in Stack v Dowden.