1
Q
what is the overriding objective?
A
to deal with cases justly and proportionately
2
Q
what are the main objectives of the overriding objective?
A
o Ensuring parties are on equal footing
o Saving expense
o Dealing with the case in ways that are proportionate to:
The amount of money involved
Importance of the case
Complexity of the case; and
The financial position of each party
o Ensure cases are dealt with expeditiously and fairly
o Allotting an appropriate amount of resource
o Enforcing compliance with other rules and directions
3
Q
what must the cost and parties do in relation to the OO?
A
- The court must give effect to the OO when making decisions and parties are required to help the court promote the OO, so parties should work together
The court must also actively manage cases
4
Q
how must courts manage cases?
A
- The court must actively manage cases which includes:
o Encourage parties to cooperate
o Identify issues at an early stage
o Decide promptly upon issues to be dealt with at trial
o Decide the order or issues
o Encourage ADR
o Help parties settle a case
o Fix timetables
o Consider the cost and benefit of taking a particular step
o Dealing with many aspects at one time
o Dealing with issues without parties attending court
o Making use of technology
o Giving directions to ensure the trial proceedings quickly
5
Q
when will a party be considered a vulnerable witness?
A
- A party or witness is considered vulnerable if something adversely affects their ability to participate in proceedings. Some relevant factors include:
o Age, immaturity or lack of understanding
o Communication or language difficulties
o Disability
o Physical or mental health condition (inc. learning difficulties)
o Subject matter of the case / their relationship to someone else involved in the case i.e. sexual assault
o Social, domestic or cultural circumstances
6
Q
what factors are relevant when deciding if a witness is vulnerable?
A
o Age, immaturity or lack of understanding
o Communication or language difficulties
o Disability
o Physical or mental health condition (inc. learning difficulties)
o Subject matter of the case / their relationship to someone else involved in the case i.e. sexual assault
o Social, domestic or cultural circumstances
7
Q
what are the court’s obligations when there is a vulnerable witness?
A
- The court will need to consider the extent to which the factor affects the individual’s ability to:
o Understand the proceedings and their role
o Express themselves and put their evidence before the court
o Respond and comply to requests of the court
o Give instructions to legal rep
o Attend any hearing
8
Q
how do the OO and vulnerable witnesses overlap?
A
The OO requires that parties be on equal footing, as far as practicable. Therefore, parties should identify any vulnerability issues asap and the court should take proportionate measures to address this
9
Q
what may the court order then there is a vulnerable witness?
A
If the court decides a party / witness’s participation or ability to give best evidence is likely to be diminished by vulnerability, the court may order appropriate provision to further the OR i.e. concealing addresses
The court should also consider implementing ground rules
10
Q
what ground rules may the court implement?
A
The court should consider implementing ground rules before a vulnerable party gives evidence:
o The nature and extent of the evidence
o The conduct of advocates
o Implementation of special measures i.e.
Remote evidence or pre-recorded evidence
Use of screens
Hearing evidence in private
Dispense with wigs or gowns
Intermediary / other communication aid
o Prohibit, limit or modify cross-examination
11
Q
what must the court do before implementing any ground rules or special measures?
A
The court must consider parties / witness’s views about participation or giving evidence before ordering any ground rules or special measures
12
Q
re: use of welsh
how can the oath be taken?
A
- The oath or affirmation can be taken in English or Welsh (witnesses and jurors)
13
Q
re: use of welsh
when does the practice direction on the use of welsh apply?
A
to civil proceedings in or having a connection with Wales
14
Q
re: use of welsh
what will the courts do in terms of listing?
A
- The court will try to list the hearing before a Welsh speaking judge or make sure there are appropriate translation facilities
15
Q
re: use of welsh
what must parties do in relation to the pre-trial checklist?
A
- Where parties are to complete a PTC, they must confirm any intention to use Welsh and provide details which were not provided in the DQ
16
Q
re: use of welsh
what should parties do at interlocutory hearings?
A
- At any interlocutory hearing, parties should inform the court about the possibility of Welsh being used in the proceedings
17
Q
re: use of welsh
what should parties do in the DQ?
A
- Any details relating to the use of Welsh should be included on the DQ, even if they have already informed the court
18
Q
re: use of welsh
what are the consequences for failure to comply?
A
- If a party fails to comply and costs are incurred, a costs order can be made
19
Q
re: use of welsh
what language can documents be in?
A
- Any document before the court in or having a connection with Wales can be in English or Welsh, but the court must be informed as soon as practicable
20
Q
re: use of welsh
what is the position if the case is being heard in Wales?
A
- In every case in Wales, parties must inform the Welsh court if they think the Welsh language maybe used so it can be appropriately listed
- The existing practice of conducting a hearing in Wales entirely in Welsh on an ad hoc basis without an application will continue if all parties agree
21
Q
re: track allocation
what happens once the defence is filed?
A
- Once the defence is filed, a court officer will allocate the case to a track
NB: only defended cases are allocated to a tack
22
Q
re: track allocation
what will the court consider when provisionally allocating the case to a track?
A
When allocating the track, the court will consider:
o Remedy sought
o Complexity of facts, law and evidence
o Number of parties
o Value of any counterclaim NB: the court will not aggregate the value of the claim and the counterclaim. The value of the claim as a whole will be the largest sum of the two claims
o Amount of oral evidence
o Importance to non-parties
o Views and circumstances of parties
23
Q
re: track allocation
what happens once the court have provisionally allocated a track?
A
- The court will then serve the notice of proposed allocation and DQ for completion by both parties
o NB: parties cannot agree to vary the filing date of the DQ
24
Q
re: track allocation
what are the key elements of the directions questionnaire?
A
- Settlement
- Court
- PAPs
- Case management information
- Experts
- Witnesses
- Costs
- Directions
25
re: track allocation
what is required under the settlement section of the DQ?
o Confirm they have considered settlement
o Confirm whether they want to stay the proceedings for one month to explore settlement. If one party disagrees they must provide reasons why. A judge may stay the proceedings for this purpose anyway.
26
re: track allocation
what is required under the court section of the DQ?
i.e. why the case should be heard at a particular court
27
re: track allocation
what is required under the PAP section of the DQ?
i.e. whether they have complied with a PAP and if not why
28
re: track allocation
what is required under the case management section of the DQ?
o Whether any applications have been made to court;
o Any objections to the provisional track;
o Submissions on appropriate complexity band (if appropriate)
o Scope and extent of disclosure (inc. provision for e-disclosure)
29
re: track allocation
what is required under the expert section of the DQ?
whether an SJE is suitable and if not details and costs of the expert evidence they wish to rely upon
30
re: track allocation
what is required under the witnesses section of the DQ?
name or provide the number of witnesses and the points they will address
31
re: track allocation
what is required under the trial section of the DQ?
provide a realistic estimate of trial length
32
re: track allocation
what is required under the costs section of the DQ?
If fast or intermediate track parties must state the complexity band
A party must file a cost budget with their DQ if:
It has been provisionally allocated to the MT;
They are legally represented; and
The value of the claim is less than £50k.
33
re: track allocation
what is required under the other information section of the DQ?
i.e. applications a party intends to make
34
re: track allocation
what is required under the directions section of the DQ?
Parties should try to agree directions. A draft order must be filed:
FT cases - standard directions
Intermediate - standard directions but can be tailored
MT cases - based on specimen directions
o If directions cannot be agreed, this should not delay filing of the DQ
35
re: track allocation
when must a cost budget be filed with a DQ?
A party must file a cost budget with their DQ if:
It has been provisionally allocated to the MT;
They are legally represented; and
The value of the claim is less than £50k.
36
re: track allocation
what happens once the DQ has been completed?
Once the DQ is completed, the court will confirm the track and send the notice of allocation
37
re: track allocation
what will the court consider when deciding which track to allocate the case to?
When allocating a track, the court will consider:
o The value of the claim (NB: the value does not include: any amount not in dispute, interest, costs or contributory negligence)
o Value of any counterclaim (NB: the court will not aggregate the value of the claim and CC. The value of the claim will be the largest sum of the two)
o The remedy sought
o Complexity
o Amount of oral evidence
o Importance of claim
38
re: track allocation
what are the consequences for a money claim in the county court where there has been a failure to file the DQ?
the court will service notice on the defaulting party requiring compliance within 7 days. Failure to do so will result in the claim being automatically struck out.
39
re: track allocation
what are the consequences where there has been a failure to file the DQ (not inc. CC money claim)?
the court can make any order it deems appropriate i.e. an unless order, strike out, list for CMC
40
re: small claims track
what is the value for PI claims?
The value of the claim for damages in respect of personal injuries or death is not more than £10k; and
The value of damages claimed as compensation for pain, suffering and loss of amenity does not exceed:
£5k for a road traffic accident (if before 2021 this is £1k);
£1.5k in all other cases
41
re: small claims track
what is the value of all other cases (i.e. not inc. PI and possession)?
o The value of the claim is less than £10k
42
re: track allocation
what does the value of the claim include?
the value does not include: any amount not in dispute, interest, costs or contributory negligence
43
re: track allocation
what is the value of the claim when there is a counterclaim?
the court will not aggregate the value of the claim and CC. The value of the claim will be the largest sum of the two
44
re: small claims track
duration?
not likely to last more than one day
45
re: small claims track
directions?
standard’ and sometimes ‘special’ directions
46
re: small claims track
what are standard directions?
a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve copies of all documents they intend to rely on at the hearing
47
re: small claims track
what are special directions?
directions given in addition to / instead of the standard directions
48
re: small claims track
expert evidence?
no expert evidence (whether written or orally) can be relied upon at a hearing without permission of the court
In practice, it would be uncommon to have expert evidence on this track.
49
re: small claims track
which cases are not normally suitable for this track?
Cases involving a disputed allegation of dishonesty are not normally suitable for this track
50
re: small claims track
can the case be decided on the papers?
* If all parties agree the court can make a decision on the statements of case rather than hearing oral evidence
51
re: fast track
value?
between £10,000.01 - £25,000
52
re: fast track
what happens on allocation?
On allocation, the court shall give directions and set a timetable unless it considers it necessary to fix a CMC.
53
re: fast track
what directions are given on allocation?
Directions to be made include:
o Disclosure
o Service of witness statements
o Expert evidence
o Fix a trial date / period (max 3 weeks)
54
re: fast track
what is the standard timetable? When does this operate from?
The standard timetable which runs from the date of allocation:
o 4 weeks – disclosure
o 10 weeks – exchange of w/s
o 14 weeks – exchange of experts’ reports
o 20 weeks – court sends pre-trial checklists
o 22 weeks – parties file pre-trial checklists (“PTC”)
o 30 weeks – trial
55
re: fast track
expert evidence?
allowed with permission of the court. Oral expert evidence will likely be limited to one expert per party and generally two expert fields.
In practice, the court will usually order SJE and limit this to written evidence unless there is good reason.
56
re: fast track
duration?
not likely to last more than one day
57
re: fast track
cases allocated to complexity band 1?
Defended debt claims and non-personal injury RTA claims
58
re: fast track
cases allocated to complexity band 2 & 3?
Most personal injury claims (inc. RTA)
59
re: fast track
cases allocated to complexity band 4?
Professional negligence claims and other complex claims
60
re: intermediate track
value?
cases between £25,000.01 and £100,000
61
re: intermediate track
which cases are not allocated to this track?
o A claim for non-monetary relief will not be allocated to this track unless it is in the interests of justice
62
re: intermediate track
duration?
not likely to last more than three days
63
re: intermediate track
what happens on allocation?
* On allocation, the court shall set a timetable and give directions unless is considers it necessary to fix a CMC
64
re: intermediate track
what are the standard directions given?
o Disclosure
o Service of witness statements total length of all w/s shall not exceed 30 pages
o Expert evidence report shall not exceed 20 pages (not inc. CV or supporting materials i.e. plans, photographs)
o Whether to fix a PTR
o Fix a trial date (no longer than 3 days)
65
re: intermediate track
what is the limit on the witness statements and expert evidence?
o Service of witness statements total length of all w/s shall not exceed 30 pages
o Expert evidence report shall not exceed 20 pages (not inc. CV or supporting materials i.e. plans, photographs)
66
re: intermediate track
what is the standard timetable to trial?
* Standard period from giving of directions to trial is no more than 30 weeks
67
re: intermediate track
what may happen if parties have agreed directions?
* If parties have filed agreed directions with their DQ (which must include a timetable), a court may approve these without a hearing
68
re: intermediate track
if directions are not agreed, what must parties do?
file proposals at least 7 days before the CMC
69
re: intermediate track
expert evidence?
allowed with permission of the court. Oral evidence is limited to one witness per party, unless a second expert is reasonable and proportionate
70
re: intermediate track
number of parties?
* There can be no more than 3 parties
71
re: intermediate track
cases typically assigned to complexity band 1?
Where there is only 1 issue in dispute and the trial will not last longer than 1 day and the case is a:
* Defended debt claim
* PI claims where liability / quantum is in dispute
72
re: intermediate track
cases typically assigned to complexity band 2?
Less complex claims but there is more than one issue in dispute
73
re: intermediate track
cases typically assigned to complexity band 3?
More complex claims and there is more than one issue in dispute
74
re: intermediate track
cases typically assigned to complexity band 4?
Most complex claims where there is a serious issue of fact or law to be considered. Trial is expected to take 3 days.
75
re: multi-track
value?
over £100,000 or complex claims under this value that are not suitable for the other tracks
76
re: multi-track
which claims are automatically assigned to the multi-track?
Certain claims are automatically allocated to the MT:
o Part 8 claims
o Claims bought in the commercial court or T&CC
o Mesothelioma and asbestos cases
o Certain clinical negligence cases
o Damages claims in relation to abuse of or by children or vulnerable adults
o Certain claims against the police
o Certain claims that could be trialled by jury
77
re: multi-track
when is the trial date/period fixed?
a trial date/period will be fixed as soon as is practicable
78
re: multi-track
what happens on allocation?
The court will either:
o Give case management directions and set a timetable without a CMC;
o Give directions for certain steps and fix a CMC
o Fix a CMC
78
re: multi-track
when will a CMC be held?
if it is desirable and necessary
79
re: multi-track
what must parties do in relation to directions?
Parties must attempt to agree directions and proposals should be filed at least 7 days before any CMC.
Parties can use the templates for standard directions for multi-track cases on the MOJ website. These can be tailored.
80
re: multi-track
what will happen if the court agrees with the parties agreed directions?
o If the court agrees with the directions, the CMC will be vacated
81
re: multi-track
expert evidence?
allowed with permission of the court. No limits expressly set out in the CPR on the number of experts but the court will give direction as to whether oral evidence is allowed.
82
re: multi-track
costs?
cost budgeting applies
83
re: multi-track
what is a CMC closer to the hearing called?
* A CMC closer to the trial is called a pre-trial review
84
re: multi-track
what is the position regarding CMCs and the other tracks?
* There is no detailed guidance on CMCs in relation to fast track and intermediate track. This is in relation to multi-track. In practice, you would likely prepare for a CMC in the same way.
85
re: multi-track
what will the court do at the CMC?
The court will (this is set out in CPR):
o Review preparation of the case
o Give directions / check compliance with directions
o Give directions to progress the case in accordance with the OR
o Attempt to narrow issues
86
re: multi-track
how should parties prepare for the CMC?
* Parties should:
o Bring all documents the court is likely to ask to see (i.e. witness statements, expert reports)
o Consider whether a case summary would be useful
87
re: multi-track
what structure should the case summary take?
Any case summary should take the following structure:
o Brief chronology of the steps taken as part of the court proceedings
o Agreed issues of fact (can be cross referenced to the SOC)
o Issues in dispute (phrased as questions)
o Evidence needed to decide the areas in dispute
88
re: multi-track
what are the formalities of the case summary?
Formalities in relation to the case summary:
o Any wording not agreed should be flagged
o It should not exceed 500 words in length
o It should be prepared by C but agreed by parties, if possible
o Signed and dated
89
re: multi-track
who should attend the CMC?
If a party is legally represented, a legal rep with sufficient knowledge of the case and authority to make decisions must attend.
90
re: multi-track
what happens if someone inadequate attends to represent at the CMC?
* If the person who attends is inadequate, a wasted costs order may be made
91
re: multi-track
to which cases do the cost management rules apply?
* The cost management rules apply to all multi-track cases under £10m
92
re: multi-track
what is cost budget (precedent H)?
sets out detailed breakdown of incurred costs and disbursements (inc. pre-action, issuing, drafting SOC) and budgeted costs (i.e. expected future costs)
93
re: multi-track
what is budget discussion report (precedent R)?
this itemises the figures that are and are not agreed for each stage of the litigation
94
re: multi-track
when are cost budgets filed?
Legally represented parties must file and serve cost budgets either:
o With their DQ if the claim is less than £50k; or
o In all other cases, 21 days before the first CMC
95
re: multi-track
when are agreed budget discussion reports filed?
Legally represented parties must file an agreed budget discussion report no later than 7 days before the first CMC
o This will include brief grounds of the dispute
96
re: multi-track
what are the formalities for the budgets?
* Budgets must be dated and include a statement of truth signed by a senior legal representative of the party
97
re: multi-track
what is the effect if a party fails to file a budget?
If a party fails to file a budget as above, they will be treated as having filed a budget but limited to court fees (unless the court orders otherwise)
This is an automatic sanction. The party would need to apply for RFS.
98
re: multi-track
in relation to cost management, what hearings may take place?
There may be one of the following hearings:
o Cost management and case management conference; or
o Cost management conference if the issues are complex
99
re: multi-track
what role does the judge play in relation to the budgets?
The judge will cross-reference the budget discussion report against the directions to ensure they are reasonable and proportionate. The court:
o Cannot approve or revise incurred costs
o Can approve / revise budgeted costs
100
re: multi-track
can a budget be amended?
Once the budget has been agreed, it can only be amended (up or down) if:
o There has been a ‘significant development’ i.e. new evidence has come to light which has increased costs; or
o The other party agrees and / or the court approves; and
o The revising party promptly files a Precedent T (budget variation sheet) setting out the particulars of the variation
101
re: multi-track
when can a budget be amended?
o There has been a ‘significant development’ i.e. new evidence has come to light which has increased costs; or
o The other party agrees and / or the court approves; and
o The revising party promptly files a Precedent T (budget variation sheet) setting out the particulars of the variation
102
re: multi-track
what can a party do if the other is causing it to spend money disproportionately?
If one party is acting oppressively to cause the other party to spend money disproportionately, they can make an application to the court for relief
102
re: multi-track
when will a cost management order be made?
a CMO will generally be made unless the court is satisfied that litigation can be conducted justly and at a proportionate cost
it can be made at any time
103
re: multi-track
what will the CMO record?
o Record the extent to which budgeted costs are agreed;
o In respect of budgeted costs that are not agreed, record the court’s approval after making appropriate revisions
o Record the extent (if any) that incurred costs are agreed
104
re: rules applicable to fast, intermediate and multi-track
what should parties do in regard to directions?
try to agree
105
re: rules applicable to fast, intermediate and multi-track
when will the court approve directions?
* If parties have filed agreed directions and the court considers them to be ‘suitable’, the court may approve them (and vacate any CMC)
106
re: rules applicable to fast, intermediate and multi-track
when will directions be 'suitable'?
Directions will be suitable if they at least include:
o A timetable with reference to calendar dates
o Propose a trial date / period
o Deal with disclosure
o Deal with factual and expert evidence
107
re: rules applicable to fast, intermediate and multi-track
what will the court do if it doesn't approve the agreed directions?
give directions of its own initiative (it will take into account the agreed directions)
108
re: rules applicable to fast, intermediate and multi-track
what directions can be varied by parties?
* The direction dates can be varied by written agreement between parties without permission of the court (unless the variation would impact one of the following dates), with the exception of: CMC, PTR, PTC date or trial
109
re: rules applicable to fast, intermediate and multi-track
what directions cannot be varied by parties?
CMC, PTR, PTC date or trial
110
what action will the court take if there has been a failure to comply with the directions timetable?
Failure to keep strictly to directions timetable will not generally be an issue provided that parties are cooperating and meeting key dates such as the CMC
However, the court will not allow failure to comply with directions to lead to postponement of the trial unless there are exceptional circumstances
111
what can one party do if the other is failing to comply with directions?
* Parties can apply for an order enforcing compliance/sanction if necessary.
112
what sanctions can be awarded if a party fails to comply?
o Unless order
o Strike out
o Award costs on an indemnity basis
o Increase or reduce interest payable on damages
113
explain an unless order
i.e. if a party doesn’t perform a certain action by a specified date, there will be a consequence
114
when can the court strike out a case?
the court can strike out a case where:
There has been a failure to comply with a rule, practice direction or court order; or
SOC discloses no reasonable grounds for bringing/defending claim
* i.e. the POC only states ‘money owed £5,000’ and doesn’t provide necessary details or it is incoherent and doesn’t make sense. However, judge is more likely to direct an unless order and if they don’t comply the case is struck out.
115
if a party is applying for an order for compliance, when must this be made?
without delay
116
when will a court sanction take effect?
* The sanction will take effect unless the party applies for relief from sanctions (NB: if the sanction is costs related, they would need to appeal the costs order instead)
117
when must an RFS application be made and what must accompany it?
Any RFS needs to be made promptly and supported by evidence.
118
what will the court consider when deciding whether to grant RFS?
o All the circumstances of the case;
o Need for litigation to be conducted efficiently and at a proportionate cost; &
o Enforce compliance with rules, practice directions and orders
119
what is the case law guidance in relation to RFS?
o If the breach was not serious or significant, relief is usually granted
o Consider why the failure or default occurred
o Evaluate all circumstances of the case so as to deal with the application justly i.e. whether the trial date can still be met, the effect the sanction has on each party
