Case Management

Question 1

Court’s general management powers

Answer 1

The court has a number of powers to mange cases and costs.

Examples:
- extend/shorten the time for compliance with any rule, pd or court order
- adjourn hearings or bring them forward
- require party or legal rep to attend court
- stay the whole or part of the proceedings or judgment either generally or until a specified event
- order any party to file and serve a costs budget

Question 2

Court’s power to make orders of its own initiative

Answer 2

Without either party taking a step the court could provide new directions or terminate a case.

Court makes an order of its own initiative without a hearing or without giving the parties the opportunity to make representations.

Court will include a statement in the order the parties have the right to apply to set aside, stay or vary the order within a given period.

If the court does not specify a period, any application should be made within 7 days of the date on which the order was served on the party making the application.

Question 3

What is a strike out

Answer 3

Strike out is the deletion of written material from a statement of case so that it cannot be relief on in the proceedings by any party.

It can include deletion of the entire statement of case so that the case is effectively over.

Strike out is designed to target cases that are inadequately drafted or are otherwise an abuse of court process.

Question 4

Court’s power to strike out

Answer 4

The court can exercise its power to strike out the whole or part of a statement of case of its own initiative, this is likely to happen around the allocation/case management stage when the court first engages with the substance of the dispute.

Used sparingly by the courts as there are often more suitable ways to deal with defective cases - requiring amendments or if the ground is failure to comply with previous orders made by the court - imposing a sanction such as an adverse costs order.

Question 5

Difference between strike out and summary judgment

Answer 5

Considerable overlap between the two provisions and applications are often made for summary judgment and strike out in the alternative.

Strike out focuses on the statements of case and so covers cases which do not amount to a legally recognisable claim or defence.

Case or issues are weak as pleaded. Summary judgement covers cases which are weak on the facts.

Question 6

Difference between strike out and default judgment

Answer 6

Default judgment is the consequence of the defendant failing to respond to a claim.

Default judgment is therefore procedural: if a defendant fails to file and acknowledgement of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment.

Court does not consider the merits of the case when ordering judgment in default. Strike out is not purely procedural.

Question 7

Grounds for a strike out

Answer 7

a) The statement of case discloses no reasonable ground for bringing or defending the claim
- no claim or defence as a matter of law

b) The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
- misuse of procedure
- obstructing just disposal: includes claims that are vexatious or obviously ill-founded

c) There has been a failure to comply with a rule, practice direction or court order
- failure in the way the claim has been conducted
- more likely to impose a lesser sanction for non-compliance

Question 8

Judgment after strike out

Answer 8

If a statement of case is struck out the other party can generally obtain judgment with costs by filing a simple request at court.

Question 9

Examples of sanctions

Answer 9

Interest: reducing the interest payable to the claimant as a sanction imposed on the claimant

Costs: ordering the defendant to pay costs on the indemnity rather than standard basis as a sanction imposed on the defendant

Striking out a statement of case

Question 10

Court’s power to impose sanctions

Answer 10

Court can either:

• impose a sanction immediately
• make an unless order - an order which provides for an automatic sanction in the event of non-compliance with the order. Unless order must specify the date and time within which the act must be done

Question 11

Failure to disclose expert report

Answer 11

Automatic sanction which prevents party from using it at trial

Question 12

Failure to file a costs budget

Answer 12

Treated as only filing a costs budget of applicable court fees.

Question 13

Sanctions and time limits

Answer 13

Where a rule, PD or court order

• requires a party to do something within a specified time and
• specified the consequences for failure to comply

the time for doing the act may not be extended by agreement between parties except for prior written agreement for maximum 28 days (so long as done not put hearing date at risk)
- unless court orders otherwise

Question 14

Non-compliance with orders imposing sanctions

Answer 14

If a party fails to comply with a rule, PD or order imposing sanction, the sanction takes effect unless the party applies for and obtains relief from that sanction

Question 15

Relief from sanctions

Answer 15

CPR 3.9: court must consider the need:

• for litigation to be conducted efficiently and at proportionate cost
• to enforce compliance with rules, practice directions and orders

Denton test:
1. Breach is neither serious nor significant

2. If not, Why breach occurred
3. All circumstances of the case - in particular cpr 3.9

Question 16

Purpose of allocation

Answer 16

Deciding which track a claim should be allocated to.

Matter because the court manages the claims on different tracks in different ways.

Decision is based primarily on the value of the claim. When assessing value the court will disregard interest, costs, any amount not in dispute and any contributory negligence.

Question 17

Four allocation tracks

Answer 17

• small claims track
• fast track
• intermediate track
• multi-track

Question 18

Small claims track

Answer 18

Normal cases:
Value not more than £10,000.

Personal injury:
Not more than £10,000 and

• personal injuries damages are not more than £1,500
• personal injuries for road traffic claims are not more than £5,000

Question 19

Fast track

Answer 19

For claims between £10,000 and £25,000, provided:

• trial will only last one day (five hours)
• there will only be oral expert from one expert per party in each of no more than two expert fields
  (one expert per party)

Question 20

Intermediate track

Answer 20

Normal track for claims (where the case is suitable for neither the small claims nor fast track) up to £100,000, provided that:

• trial will last no longer than 3 days if managed proportionately; and
• oral expert evidence is likely to be limited to two experts per party

Question 21

Multi-track

Answer 21

For cases worth more than £100,000 or with long trial time or need for expert evidence.

Question 22

Overview of allocation

Answer 22

1. Defence is filed
2. Court sends out the notice of proposed allocation, provisionally allocating the claim to the small claims track, fast track, intermediate track or multi track
3. Parties file directions questionnaires
4. If claim as been provisionally allocated the parties also file proposed directions
5. Court will allocate the claim to track (after hearing if necessary) and serve a notice of allocation

ALLOCATION TO:

small claims: court will usually give directions

Fast track: court will usually give directions

Intermediate or multi-track: court will give directions or fix a case management conference at which directions will be considered

Question 23

Notice of proposed allocation

Answer 23

After receiving the defence a court officer will provisionally allocate the case to a track which appears most suitable for the claim and then serve notice of the proposed allocation indicating the track for the claim.

Will also require parties to:
1. file and serve a directions questionnaire
2. fast/intermediate or multi: file proposed directions
3. For claims under costs management regime, file and serve costs budget and an agreed budget discussion report

And deadlines for these steps.

Question 24

Directions questionnaire

Answer 24

Completed questionnaire will enable the court to determine to which track the case should be allocated.

Small claims: Form N180

Fast/Intermediate/Multi: Form N181

Will ask about:
- Pre-action protocol
- Settlement
- Disclosure
- Witnesses
- Expert Evidence
- Trial
- Costs
- Directions
- Other matters

Question 25

Directions Questionnaire: Pre-action Protocol

Answer 25

The parties must confirm in the DQ whether they have complied with the pre-action protocols. If there is no specific pre-action protocol then parties are expected to comply with the practice direction on Pre-Action Conduct. If a party fails to comply with the pre-action protocol is must explain why and there may be sanctions.

Question 26

Directions Questionnaire: Settlement

Answer 26

There is a section where the parties can request the court stay the proceedings so the parties can try to settle. A stay is a period of time during which proceedings are paused and the parties cannot take further steps in the proceedings. Legal Representation have to confirm in the DQ that they have explained to their client the need to consider settling the claim and that there could be costs consequences against them if the client unreasonably refuses to try and settle. If all parties request a stay it will be for a month. In any other circumstances the court can grant is if it considers it appropriate. Stays are usually granted one month at a time and if the case is not settled at the end of that period the case will be referred to judge for allocation and directions.

Question 27

Directions Questionnaire: Disclosure

Answer 27

The DQ also asks the parties to provide a lot of case management information as to the future preparation of the case for trial including the extent of disclosure.

Question 28

Directions Questionnaire: Witnesses

Answer 28

Each party will also be required to name the witness that it would like to call to trial and detail what it hopes they will help prove.

Question 29

Directions Questionnaire: Expert Evidence

Answer 29

Client will need court's permission to rely on expert evidence.

Question 30

Directions Questionnaire: Trial

Answer 30

Parties are required to estimate the time needed for trial and good idea to consult counsel for an accurate estimate.

Question 31

Directions Questionnaire: Directions

Answer 31

Requires parties to attempt to agree directions and to attach them if the case has been provisionally allocated. Proposed directions are filed with the DQ whether the parties have reached agreement or not.

Question 32

Directions Questionnaire: Other Matters

Answer 32

- which court the claim should be heard in - which track the parties think the case should be allocated to - which complexity band the parties think the case should be assigned to if it is to be allocated to the fast or intermediate track - whether the parties have already made any interim applications and whether they intend to make any in the future - any other facts or documents the parties wish the judge to consider on allocation

Question 33

Allocation

Answer 33

Once DQ and other documents have been filed the court will allocate the claim to a track (and for fast and intermediate assign a complexity band). Court may consider it needs more information in order to allocate therefore it may order a party to provide further information about the case or hold an allocation hearing. Allocation hearings are quite rare. Once the court makes an allocation decision, it will send notice of allocation to the parties together with a copy of the DQ.

Question 34

Criteria for allocation

Answer 34

- Financial value of the claim - Nature of the remedy sought - Likely complexity of the facts, law or evidence - Number of parties or likely parties - Value of counterclaim - Amount of oral evidence - Public importance of the claim - Views expressed by the parties - Circumstances of the parties APPROACH: - Identify normal track - decide whether there is good reason to allocate the claim to a track other than the normal track, taking into the considerations listed immediately above.

Question 35

Feature of the small claims track

Answer 35

1. Very limited costs recovery The court will rarely order one party to pay any costs to the other party other than very limited fixed costs (and court fees and witness expenses) 2. Fewer formalities Certain CPR rules do not apply to cases allocated to the small claims track and hearings on the small claims track are informal with parties generally representing themselves. Note: These two features encourage litigants to represent themselves 3. Abbreviated directions Usually include: (a) parties file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing (b) original documents be brought to the hearing (c) Notice of the hearing date (at least 21 days) and time allowed for hearing (d) The court must be informed if, by agreement between the parties the case settles

Question 36

Standard directions for the fast track

Answer 36

Within how many weeks of the notice of allocation: Disclosure: 4 weeks Exchange of witness statements: 10 weeks Exchange of experts reports: 14 weeks Filing pre-trial checklists at court: 22 weeks Trial date: 30 weeks

Question 37

Directions on intermediate track

Answer 37

The Parties are required to endeavour to agree directions and submit them to the Court 7 days before the CMC. If the Court agrees the directions or issues its own directions the CMC will be vacated.

Question 38

Options on allocation to the multi-track

Answer 38

Court will either: - Give directions (usual if the case is not complex) - Hold a case management conference

Question 39

Purpose of a case management conference

Answer 39

- Suitability of the case for settlement - Position the parties have reached in the litigation - Steps the parties have already taken - Compliance with previous directions/orders - Estimated costs of litigation and whether this is proportionate - Steps to be taken in teh future

Question 40

Issues considered at a CMC

Answer 40

1. Whether claim is clear 2. Whether any statements need to be amended 3. What disclosure is required, if any 4. What expert evidence is required and how and when it should be obtained 5. What factual evidence should be provided for 6. Whether any further information is required 7. Whether it will be just and save costs to order a split trial or the trial of one or more preliminary issues

Question 41

Who should attend the CMC?

Answer 41

Any legal representative attending a CMC must: 1. Be familiar with the case 2. Have sufficient authority to deal with any issues likely to arise (like discussing directions/identifying issues)

Question 42

CMC procedure

Answer 42

File disclosure report: not less than 14 days before CMC File draft directions: not less than 7 days before

Question 43

Directions in multi-track cases

Answer 43

Parties are under an express obligation to try to agree directions before any CMC. This satisfies the overriding objective by saving time and money and is reinforced by the requirement that agreed directions have to be submitted to out at least seven days before any CMC. If parties have agreed all the directions required - it may vacate the CMC. Where parties have been unable to agree directions then the CMC will be used for the court to give directions. The court likely hear submissions from the representatives at the CMC before deciding what directions to make.

Question 44

Disclosure report

Answer 44

In multi-track cases both parties must produce a disclosure report unless the claim includes a claim for personal injury. Not less than 14 days before the first CMC must file and serve the report verified by a statement of truth in the form of Form N263 or can use electronic documents questionnaire N264 which is filed alongside Disclosure Report.

Question 45

What goes in a disclosure report?

Answer 45

a) Describes what documents exist or may exist, that are, or may be, relevant to the matters in issue in the case b) Describes where and with whom those docuemnts are or may be located c) Describes how many documents are stored d) Estimates the costs in giving standard disclosure e) States which of the disclosure directions are to be sought

Question 46

Case summaries

Answer 46

May be helpful to court. Short document of not more than 500 words prepared by the claimant and agreed with the other parties, designed to assist the court in understanding and dealing with the issues raised. Should contain: - Chronology of the claim - Factual issues agreed and in dispute - Nature of the evidence needed to decide them