Case Management

Question 1

What is the overhang objective of the CPR set out in rule 1.1 of the CPR?

Answer 1

To deal with cases justly and at a proportionate cost.

Question 2

List the 6 objectives the court should seek to achieve when dealing with cases.

Answer 2

1) ensure parties are on equal footing;

2) Saving expense;

3) Dealing with cases in way proportionate to:
a) Amount of money involved;
b) Importance of the case;
c) Complexity of the issues; and
d) Financial position of each party

4) Ensure case is dealt with fairly and expeditiously;

5) Allowing to it appropriate share of court’s resources, also taking into account needs to allot resources to other cases;

6) enforcing compliance with rules, practice directions and orders.

Question 3

Upon the filing of a defence, what will the court do in respect of track allocation?

Answer 3

• Court will provisionally decide which track appears most appropriate for the claim;
• Court will then serve notice of proposed allocation on the parties requiring them to file and serve completed directions questionnaires by specific date.

Question 4

In addition to the directions questionnaire, which documents need to be prepared by the parties for cases allocated to the multi-track?

Answer 4

1) case summary;
2) disclosure report;
3) costs budget and budget discussion report.

Question 5

What goes in part A (settlement) section of the directions questionnaire?

Answer 5

• Solicitor confirms they explained to client needs to try and settle, options available and possible costs sanctions on refusal to engage.
• Parties are asked whether to have a 1 month stay, to attempt to settle matter at this stage. If agreed by all parties, court will stay proceedings for 1 month. If not, party objecting must give reasons why they see it as inappropriate.
• Important to note court can stay proceedings for any length of time if they see fit regardless of whether parties have requested this.

Question 6

Explain what goes in section B (court) of directions questionnaire.

Answer 6

Reasons why case needs to be heard in particular court should be stated.

Question 7

Explain what goes in section C (pre-action protocols) section of directions questionnaire.

Answer 7

Parties must state whether they complied with relevant pre-action protocol and if not, explain reasons.

Question 8

Explain what goes in section D (Case Management Information) section of directions questionnaire.

Answer 8

• Includes - whether any applications have been made to the court;
• Any objections to provisional allocation of the case/ reasons for requesting a different track;
• Scope and extent of disclosure documents including proposals for how to deal with electronic documents.

Question 9

Explain what goes in section E (experts) section of directions questionnaire.

Answer 9

Parties should indicate whether case is suitable for single joint expert and if not, provide details of expert evidence they wish to rely on at trial including the cost.

Question 10

Explain what goes in section F (witnesses) section of directions questionnaire.

Answer 10

Parties must name witnesses or provide the number of these witnesses, of those which they intend to call on at trial and identify points witnesses will address.

Question 11

Explain what goes in section G (trial) section of directions questionnaire.

Answer 11

Realistic estimate of how long the trial will last must be given.

Question 12

Explain what goes in section H (costs) section of directions questionnaire.

Answer 12

If party is legally represented and can likely to go to multi-track, a costs budget MUST be filed.

Question 13

Explain what goes in section I (other information) section of directions questionnaire.

Answer 13

Other info which may assist judge in hearting the claim should be included, including applications parties intend to make.

Question 14

Explain what goes in section J (directions) section of directions questionnaire.

Answer 14

• Parties should attempt to agree directions and draft order must accompany questionnaire.
• For fast track this will usually be standard directions;
• For multi-track, directions should be based on the specimen directions listed on MOJ website.

Question 14

What are the consequences of failing to file/ follow directions questionnaire?

Answer 14

• If claim is for money in the county court, court will serve a notice on defaulting party requiring compliance within 7 days. Failure to do so results in party’s statement of case being struck out automatically.
• All other cases, courts will make order as they see fit. May include an order for directions, to strike out statement of case or to list matter for a case management conference.

Question 15

Give the financial value thresholds for the three tracks.

Answer 15

1) Small track - up to 10k;
2) Fast track - between £10,000.01 and £25k;
3) Multi-track - over 25k

Question 16

Aside from value, which other factors will be taken into account by courts when allocating a track?

Answer 16

• remedy sought
• complexity of facts, law and evidence
• number of parties
• value of any counterclaim
• amount of oral evidence
• importance to non-parties
• views and circumstances of parties

Question 17

List the values/ amounts which the court will NOT consider when allocating a track.

Answer 17

• interest
• costs
• contributory negligence
• any sum not in dispute

Question 18

Which value is used where the courts are deciding to allocate a claim (in situations where there is a claim and also a counter claim)?

Answer 18

The largest value (ie if the claim is for 20k and the counter claim is 6k, the claim value will be taken as 20k and allocated according to that value).

Question 19

Explain the rule for value regarding PI claims in the small track.

Answer 19

Claim for damages for pain suffering and loss of amenity in respect of PI may not exceed 5k.

Question 20

What parts of the CPR do not apply to small track claims?

Answer 20

Disclosure and inspection and provisions relating to evidence and experts.

Question 21

How are the processes of the small claims track tailored and why?

Answer 21

They are tailored to allow litigants in person (ie not represented by solicitors). As such the process is simpler and the courts try to limit procedural formalities as much as possible.

Question 21

List typical directions the court may give in a small claims case.

Answer 21

• each party delivering to the others copies of all documents on which they intend to rely;
• a requirement for them to bring original documents to the hearing; and
• the parties not being allowed to rely on an expert’s report without express permission from the court.

Question 22

Aside from claim value, what is the further consideration courts make when considering if a claim is suitable for fast track?

Answer 22

Predicted length of the trial. Only if case is predicted to last no longer than a day will it be suitable for the fast track.

Question 23

What type of directions are usually issued by the court in fast track cases?

Answer 23

Usually standard direction will be issued.

Question 23

Can the parties agree different directions when using the fast track?

Answer 23

Yes but these must be approved by the court.

Question 24

What is the typical timetable for cases in the fast track?

Answer 24

1) Disclosure - 4 weeks 2) Exchange of witness statements - 10 weeks 3) Exchange of experts’ reports - 14 weeks 4) Court sends pre- trial checklists - 20 weeks 5) Parties file pre- trial checklists - 22 weeks 6) Hearing (trial) - 30 weeks

Question 24

Can the parties agree a different timetable when in the fast track?

Answer 24

Yes if done so in writing and permitted by the court. However the deadlines/ timeline for the trial date and returning pre-trial checklists cannot be changed.

Question 25

List key differences of the fast track in comparison to the multi track.

Answer 25

1) Directions are standard, not so tailored to individual case; 2) Expert evidence is more limited. Court will often order single joint expert, unless there is good reason to appoint separate experts, and will rely on written report at trial rather than allowing experts to give oral evidence; 3) Trial is expected to last no longer than a day; 4) Power to award costs is limited and judge generally assess these instantly (summarily) at the end of the trial.

Question 26

In the multi-track what is a case management conference and when is it used?

Answer 26

- Used for complex claims where the court may need to adopt a flexible approach. - The conference ensures the court can understand the appropriate directions which need to be given in relation to the specific case

Question 27

What does the case management conference (CMC) usually do?

Answer 27

Only applies to multi-track cases. CMC will: 1) Review steps parties have taken to prepare the case; 2) Check compliance with any directions the court has made (eg following an application for a summary judgment which was dismissed); 3) Consider and give directions about future steps ensuring claim proceeds compliant with overriding objectives.

Question 28

What is a wasted costs order?

Answer 28

If CMC needs to be adjourned because the person attending does not have adequate knowledge to deal with the issues arising, the court will issue a water costs order. Effectively, this is an order to pay the other party's costs for preparing and attending the CMC, which will be paid either by the solicitor personally or their firm.

Question 28

Can a second CMC be used?

Answer 28

Yes - courts may decide another CMC is needed as the matter progresses. If the trial is approaching this ay be called a pre-trail review but the purpose and substance are very similar to the CMC.

Question 29

Explain the purpose of the case summary.

Answer 29

Effectively an updated case analysis to determine which issues are still in dispute. In most multi track cases, case summary will be prepared for CMC to assist judge in determining how case should proceed to trial. The summary should set out a brief chronology of the claim, state factual issues which are agreed and not agreed, and evidence which is needed to decide them. Claimant is responsible for preparing the document but is possible it should be agreed with all other parties.

Question 30

Which elements of the practice directions are parties using the multi-track precluded from amending without the consent of the court?

Answer 30

(a) any case management conference; (b) a pre- trial review; (c) the return of a pre- trial checklist; or (d) the trial or the trial period.

Question 31

If parties agree to settle, what is usually expected?

Answer 31

That they will inform the court they have settled and provide the court with a draft of the consent order. This aids the overriding objective of the

Question 32

Once directions are agreed between parties, how long before ether start of the CMC must these be submitted to the court for approval?

Answer 32

At least 7 days prior to the CMC.

Question 33

What course of action is available to either party should they fail to meet a requirement (deadline) in the directions?

Answer 33

They may apply to the court for an order enforcing compliance and/ or for a sanction to be imposed on the other party.

Question 34

What action will the court take if the trial date cannot be met by one of the parties?

Answer 34

The trial will be postponed, unless the circumstances are exceptional.

Question 35

Which claims are excluded from the process of costs management?

Answer 35

Claims of £10 million or more.

Question 36

What is the aim of costs management?

Answer 36

To ensure future costs are reasonable and do not become disproportionate by determining what actions should be taken in the proceedings and at what expense.

Question 37

What must be included in the costs budget?

Answer 37

- A detailed breakdown of the costs and disbursements already incurred (pre- action, issue of proceedings and statements of case) – ‘incurred costs’; and - An estimate of future costs and the assumptions on which those are based for the future phases of the proceedings, namely, case management, disclosure, evidence, pre- trial review, trial preparation and trial stages, along with any ADR or settlement discussions and contingencies. These are known as ‘budgeted costs’.

Question 38

True or False: the costs budget must be dated and verified by a statement of truth signed by a senior legal representative of the party?

Answer 38

True.

Question 38

Once the costs budget has been completed and verified with the statement of truth, what must the parties do next?

Answer 38

- File the costs budget: a) with the directions questionnaire (for claims less than 50k); and b) no later than 21 days before the first CMC for all other claims. - Having done the above, parties must then complete budget discussion report no later than 7 days prior to the first CMC. This will itemise/ include figures for those phases which are agreed, and for those that aren't it will include brief summary of grounds for dispute.

Question 39

Explain the role of the judge in the cost management process.

Answer 39

- Will review the costs which are disputed, cross-referring between the parties proposed directions and budgets ensuring they are all reasonable and proportionate to the case; - Budget then revised where necessary; - Court normally conducts costs management and CMC at the same time (but will be separated if complex).

Question 40

Can a costs budget be amended/ varied once submitted and approved by the court?

Answer 40

- Yes but very rare. - Agreement of both parties is needed and court needs to be persuaded there has been a significant development to warrant the amendment (eg witness report which was not expected previously). - Precedent T form is used to amend the costs budget if relevant.

Question 41

Explain the remedy if one party is acting oppressively in the costs budget.

Answer 41

- This is where one party (wealthier than the other) is actively trying to make the other party spend disproportionate amounts of money on costs. - Application can be made to the court when this happens and court will grant relief as they see fit.

Question 42

What happens if a party fails to submit costs budget in time?

Answer 42

Rule 3.14 provides that unless the court orders otherwise, that party will be treated as having filed a costs budget only consisting of court fees. As such, they would only be able to recover the court fees from another party if their claim/defence is successful.

Question 43

What is a costs management order given by the court?

Answer 43

This will be imposed by the judge unless judge is satisfied litigation can be conducted justly and at a proportionate cost without the need for the order. In the order the court will: a) record the extent to which any incurred or budgeted costs are agreed between the parties; and b) in respect of the budgeted costs that are not agreed, record the court’s approval after making appropriate revisions.

Question 44

Explain the effect of a costs management order.

Answer 44

Court will thereafter control budgets of parties in respect of recoverable costs. If at trial, one is ordered to pay the costs of the others costs to be be assessed by court on standard basis, the court will not depart from the receiving party's last approved or agreed budget unless satisfied there is good reason for doing so.

Question 45

Explain the effect on costs in the absence of a costs management order.

Answer 45

- More flexibly in dealing with costs; - If difference of more than 20% between the costs budget and the costs claimed by the receiving party, receiving party must provide statement for the reasons for the difference; - Court will then decide whether additional amounts will be claimed.

Question 46

When will the court use the power under rule 3.4 to strike out a party's case?

Answer 46

1) Statement of case discloses no reasonable grounds for bringing/ defending the claim; 2) There has been a failure to comply with a rule, practice direction or court order. Example would be where the statement of case does not set out any facts as to what the claim/defence is about.

Question 47

In addition to striking out under rule 3.4, what other sanctions do the courts have at their disposal?

Answer 47

1) Costs - to require the party in default to pay the other party's additional costs on an indemnity basis; 2) Interest - orders could be made increasing/ reducing - depending on which party is at fault, the internet payable on any damages; and 3) Unless order - if a party fails to take a step in proceedings in accordance with a court order, an application may be made to the court for an unless order by the other party.

Question 48

Can a party apply for relief in relation to an order for the payment of costs?

Answer 48

No. Instead the decision must be appealed.

Question 49

What will the court consider in relation to an application for relief from sanctions?

Answer 49

1) The need for litigation to be conducted efficiently and at proportionate cost; and 2) To enforce compliance with rules, practice directions and orders.

Question 50

The case of Denton set out a structured approach to be followed when considering a party's failure to comply with any rule, practice direction or court order. What is this 3 stage approach?

Answer 50

1) Identify and assess seriousness or significance of relevant failure. If breach was not serious or significant, relief is usually granted; 2) Consider why the failure or default occurred; 3) Evaluate all circumstances of the case so as to enable court to deal with application justly. Factors will include whether trial date could still be met and effect of failure to comply and granting of relief would have on each party.