LGS03 Case Management Flashcards

Question

When are County Court claims for specified sums of money sent to the defendant’s home court?

Answer 1

where the defendant is an individual. This happens at the ‘relevant time’, which is when (rr. 13.4, 26.2A(3), (6)): * all parties have filed their directions questionnaires, or * a stay to attempt mediation has expired, or * an application is made to set aside a default judgment. Where there is more than one defendant, the case is sent to the home court of the defendant who first files a defence

Answer 2

where the defendant is an individual. These claims are transferred to the defendant’s home court if a defence is filed or if an application is made to set aside a default judgment (rr. 13.4, 26.2).

Answer 3

There is also a general **discretion** to transfer to and from: * the High Court / County Court * different Divisions of the High Court * different County Court hearing centres * specialist Lists

Answer 4

Transferred to the correct court, and claimant will usually be penalized by being made to pay the costs of the application to transfer the claim and, if ultimately successful, may have an award for costs reduced by up to 25% (SCA 1981 s 51(8) and (9) If the court is satsfied that the claimant knew or ought to have known that the claim is being started in the wrong court, the court has a discretion to transfer or to strike out proceedings (CCA 1984 ss 40(1)(b)and 42(1)(b) Striking out is inappropriate for bona fide mistakes but could be proper in instances where starting in the court was a deliberate attempt to harrass a defendant or run up unecessary costs or was done in defiance of a warning from the defendant about the proper venue for the proceedings.

Answer 5

Yes Nat WEst Bank Plc v King [2008] Ch 385

Answer 6

Criteria for a transfer order 30. 3 (1) Paragraph (2) sets out the matters to which the court must have regard when considering whether to make an order under – (a) section 40(2), 41(1) or 42(2) of the County Courts Act 19841 (transfer between the High Court and a county court); (b) rule 30.2(1) (transfer within the County Court); or (c) rule 30.2(4) (transfer between the Royal Courts of Justice and the district registries). (2) The matters to which the court must have regard include – (a) the financial value of the claim and the amount in dispute, if different; (b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court; (c) the availability of a judge specialising in the type of claim in question and in particular the availability of a specialist judge sitting in an appropriate regional specialist court; (d) whether the facts, legal issues, remedies or procedures involved are simple or complex; (e) the importance of the outcome of the claim to the public in general; (f) the facilities available to the court at which the claim is being dealt with, particularly in relation to – (i) any disabilities of a party or potential witness; (ii) any special measures needed for potential witnesses; or (iii) security; (g) whether the making of a declaration of incompatibility under section 4 of the Human Rights Act 1998 has arisen or may arise; (h) in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London. (3) Where in proceedings in the County Court the court considers that there is a real possibility that a party would in the course of the proceedings be required to disclose material the disclosure of which would be damaging to the interests of national security, the court must transfer the proceedings to the High Court.

Answer 7

* **Case management conferences** (“CMC”); * **Costs management** conferences (LGS 11); * “Hearings under rule 28.5(4)” (or 29.6(4)) (called “**listing hearings**”); and * **Pre-trial reviews** (“PTR”)

Answer 8

They are considered by a procedural judge when defences are filed. If it appears that the case is suitable for allocation to the multi-track, the DJ will normally make an order allocating, give CM directions and transfer to a civil trial centre (PD 26, para 10.2(5)). Sometimes a case might be allocated multi track but remain in a feeder court where there will be \>1 CMC and the parties or reps live far for civil trial centre

Answer 9

* Hearings take place before a “procedural judge” * Usually a District Judge or Master, but sometimes a Circuit or HC Judge * Multi-track cases may be "docketed", which means all interim applications will be heard by the same judge, and often the trial too (**APA Civil para 15.06**) * Cases in the Ch. and QB are assigned to individual Masters (PD 2B para 6.1) but from time to time hearings may be dealt with by other masters or deputies as the circs. require, and cases may be transferred from one master to another * Important cases in the Commercial Court are allocated to a management team of two designated judges (Commercial Court Guide para D 4.1)

Answer 10

This is a formal hearing before a procedural judge, often lasting 30 mins or 1 hour. Basically designed to ensure the case is dealt with efficiently.

Answer 11

Multi-track claims are typically going to be subject to: * Costs management (CPR, r 3.12(1)); and * Menu option disclosure (r 31.5(2)). Therefore, in these cases, in advance of a CMC the parties must file and serve:- * (a) Draft proposed directions using the standard forms found on the Ministry of Justice website (rr 29.1 and 29.4). See **APA Civil pages 169-170** for an example; (b) Costs budgets. See **APA Civil page 183**; and (c) Disclosure reports (**APA Civil para 15.10**). See **APA Civil page 343**.

Answer 12

Disclosure 31. 5 (3) ***_Not less than 14 days before the first case management conference_*** each party must file and serve a report verified by a **statement of truth**, which – (a) describes briefly **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 documents are or may be located**; (c) in the case of **electronic documents**, describes how those documents are stored; (d) estimates the broad range of **costs that could be involved in giving standard disclosure** in the case, including the costs of searching for and disclosing any electronically stored documents; and (e) states **which of the directions under paragraphs (7) or (8) are to be sought**. (4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3). (5) ***_Not less than seven days before the first case management conference_***, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective. (6) If – (a) the parties **agree** proposals for the scope of disclosure; and (b) the **court considers that the proposals are appropriate** in all the circumstances, the **court may approve them without a hearing** and give directions in the terms proposed. (7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following ***_orders_*** to make in relation to disclosure – (a) an **order dispensing with disclosure**; (b) an **order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party**; (c) an order that **directs, where practicable, the disclosure to be given by each party on an issue by issue basis**; (d) an order that **each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences**; (e) an **order that a party give standard disclosure**; (f) **any other order** in relation to disclosure that the court considers appropriate. (8) The court may at any point give directions as to ***_how_*** disclosure is to be given, and in particular – (a) what **searches** are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents; (b) whether **lists** of **documents** are required; (c) **how and when** the disclosure statement is to be given; (d) in what **format** documents are to be disclosed (and whether any identification is required); (e) what is required in relation to **documents that once existed but no longer exist**; and (f) whether disclosure shall take place in **stages**. (9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).

Answer 13

CPR, r. 29.3(2): A representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend. PD 29, para 5.2 If an inadequate lawyer attends, the court will usually make a ***wasted costs order***.

Answer 14

The judge: * considers the statements of case * allocates to a track (if not yet allocated) * checks on progress in preparing the case for trial * may require the parties to consider ADR * gives **directions**

Answer 15

Directions are a timetable for steps to be taken to prepare the case.

Answer 16

Deadlines must be given for each step, usually expressed as “no later than 4 pm on Friday [16 October 2015]”.

Answer 17

To avoid having an actual directions hearing, the parties will often attempt to agree directions. This will be achieved if the court considers the directions suitable (CPR, r. 29.4). This will only be possible (PD 29, para 4.7) if the agreed directions: * set out a timetable by reference to calendar dates * include provision for disclosure of documents * include provision for factual and expert evidence * include a proposed trial date, or trial period

Answer 18

**Directions; overriding objective; and costs budgets****APA para 15.35** In making directions the court must: Apply the overriding objective of dealing with cases justly and at proportionate cost Have regard to any available costs budgets (r. 3.17(1)).

Answer 19

1. Lists of documents within 4 weeks Requests for inspection of documents: 7 days 2. Exchange witness statements (for use at trial) within next 4 weeks 3. Experts * Fields of the experts, and the issues the evidence will address * If practicable, their names * Need an estimate of the cost of the expert evidence * In fast track claims, typically a single jointly instructed expert 4. Dates for sending pre-trial checklists to parties and for the parties to return checklists to court 5. Trial date or window (Fast track claims: 30 weeks from allocation to trial). Estimate for length of trial

Answer 20

**Other common directions** (and where they fit in), typical in multi-track claims * Amendment of statements of case * Requests for Further Information and answers * Lists of documents * Inspection of documents * Exchange of witness statements * Exchange of experts’ reports * Questions to be put to and answered by experts * Filing Pre-trial Checklists * Case summary * Estimates of costs

Answer 21

* # ·Directions are made to ensure a workable timetable is laid down for the orderly progress of the litigation towards trial * Directions are aimed at the just resolution of the dispute, while keeping costs in proportion etc * The extent of the directions made, and the likely cost of complying with them, depends on which track applies, and overall considerations of how important the case is, how necessary the directions are * The court applies the general principle of **“cards on the table”**. This means both sides must: * Show the other side their evidence **before** the trial * (Generally) disclose their evidence at (or about) the same time

Answer 22

**WB Supplement 2013, p xii** *"The aim is that, in general, no case should come to trial without the parties having undertaken some form of ADR to seek to settle the case. To assist in this process an ADR handbook will be published in April 2013."* (Sir Rupert Jackson)

Answer 23

*Halsey v Milton Keynes General NHS Trust* [2004] 1 WLR 3002 * Recognised the value of mediation, and that it can achieve excellent results * Rejected there is any presumption that mediation must be used * Parties must ‘consider’ ADR * Set out 7 factors that are used by the courts in deciding whether any refusal to use ADR was reasonable (set out in **APA Civil, para 10.15**).

Answer 24

"When should the court impose a costs sanction against a successful litigant on the grounds that he has refused to take part in alternative dispute resolution?"

Answer 25

Although Halsey involved inter-party mediation proposals and not where the court had itself recommended or ordered mediation, the Court of Appeal reaffirmed that ADR Orders in Commercial Court form, and also as used by Master Ungley in relation to clinical negligence cases were valid and worthy of wider application.

Answer 26

...could well of itself justify a costs sanction against a successful party.

Answer 27

It makes it clear that although to deprive a successful party of costs is an exception to the CPR 44.3(2) that costs follow the event, the power still exists to do so on the basis of unreasonable conduct. Indeed, variations on traditional costs orders because of unreasonable litigation conduct, lack of proportionality or failure to win on certain issues and occupying court time doing so, have become commonplace since the CPR.

Answer 28

* **The nature of the dispute**, as to which the Court warned that *"most cases are not, by their very nature, unsuitable for mediation.*" * **The merits of the case**, by which a party which reasonably believes it has a strong case might make refusal of mediation reasonable. Where a case is border-line, refusal is much riskier. In truth there are a vast number of cases which fall between those extremes, and little safe guidance is given there. * **Other settlement methods have been attempted**, though again the Court noted that*"mediation often succeeds where other settlement attempts have failed"*, and it regards this reason as part of whether mediation has reasonable prospects of success (discussed below). * **Costs of mediation would be disproportionately high** ¸always a proper consideration late in a modest claim, but the cost benefit may be much better and justify mediation early in its life. * **Delay** to a trial date: this has never occurred in CEDR Solve's experience. * **Whether mediation had a reasonable prospect of success**, the burden of showing which lies with the unsuccessful party who proposed mediation, and not with the successful party who refused. This factor is actually rather played down by the Court in Halsey, since it may be the attitude of a party which means that mediation has no reasonable prospect of success. The burden is not regarded by the Court as being unduly onerous: the unsuccessful litigant must show that there was a reasonable prospect that the mediation would have succeeded. What amounts to 'success' in mediation remains open to debate.

Answer 29

*"Refusal is a high risk course to take… the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making the objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and does often bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation."*

Answer 30

Dyson LJ's judgement reads: "All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR."

Answer 31

Stay to allow for settlement of the case 26. 4 (1) A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means. (2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly. (2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate. (3) The court may extend the stay until such date or for such specified period as it considers appropriate. (4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached. (5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.

Answer 32

1. Pre-action Protocol 2. Issue claim form 3. Service of claim form and Particulars of Claim 4. Acknowledgment of service (optional) 5. Defence 6. Reply (optional) 7. Provisional track allocation 8. Directions questionnaires 9. Track allocation and directions 10. Disclosure report and electronic documents questionnaires (multi-track) 11. Case management conference (optional) 12. Lists of documents 13. Inspection of documents 14. Witness statements 15. Experts’ reports 16. Without prejudice meeting of experts 17. Pre-trial checklists 18. Listing for trial 19. Pre-trial review (optional) 20. Briefing of counsel 21. Preparation of trial bundles and skeleton arguments 22. Trial

Answer 33

Partnership is the relation which subsists between persons carrying on a business in common with a view of profit: Partnership Act 1890, s 1. Note: "**firm**" is the legal shorthand of "partnership".

Answer 34

Every partner is an agent of the firm and the other partners for the purpose of the business of the partnership: Partnership Act 1890, s 5.

Answer 35

Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he was a partner: PA 1890, s 9.

Answer 36

PD 10 para 4.4. provids that where a claim is brought against a partnership, a) service must be acknowledged in the name of the aprtnership on behalf of all persons who were partners at the time when the cause of action accrued; and b) the acknowledgment of service may be signed by any of those partners or by any person authorised by any of those partners to sign it

Answer 37

HUNT & MURRAY (a firm) _Claimant_ *Also possible if the firm uses a trading name:* BOISTEROUS & Co (a firm) _Claimant_

Answer 38

Partnership membership statements PD 7A para 5B 5B.1 In this paragraph a ‘partnership membership statement’ is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with paragraph 5B.3. 5B.2 If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners must do so within 14 days of receipt of the request. 5B.3 In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued.

Answer 39

You need at least two persons to be a partnership. A person trading on their own cannot be a partnership, even if they use a trading name. They are a "sole trader". Any trading name is just a pseudonym for the person in question.

Answer 40

PD 7A para 5C 5C.1 This paragraph applies where – (1) a claim is brought against an individual; (2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and (3) that business is carried on in a name other than that individual’s own name (‘the business name’). 5C.2 The claim may be brought against the business name as if it were the name of a partnership.

Answer 41

**Name in Proceedings** Mr JOHN HUNT (trading as BOISTEROUS & Co) _Claimant_ Also possible given PD 7A, para 5C.2: BOISTEROUS & Co (a firm) _Claimant_

LGS03 Case Management Flashcards

(67 cards)