1. Allocation Flashcards
1
Q
Which claims are small track the normal track for personal injury (PI)?
A
- For personal injury claims of less than £10,000 AND the value of any claim for damages for personal injury is not more than £1,500.
2
Q
Which claims are small track the normal track?
A
- Claims with a monetary value of less than £10,000 OR.
3
Q
Which claims are fast track normal track for?
A
- Claims which small track is not the normal track AND the claim is for monetary relief which is not more than £25,000 AND the trial is not likely to last for more than a day AND experts are limited to two expert fields and one expert per party.
4
Q
Immediate track are normal track where claim is
A
- The claim is suitable for neither the small claims track nor the fast track AND where the value of the monetary relief claimed is not more than £100,000 AND the trial will not last for more than three days AND oral expert evidence is limited to two experts per party AND Claim is brought by 1C against 1/2D’s or 2C’s against 1D. Court can allocate to intermediate track where it considers it in interests of justice to do so.
5
Q
Where relief sought includes a claim for non-monetary relief …
A
- Where the relief sought includes a claim for non-monetary relief, the claim shall not be allocated to the intermediate track unless the court also considers it to be in the interests of justice to do so.
6
Q
Claims that included a claim for clinical negligence MUST be allocated to …
A
- Claims that included a claim for clinical negligence MUST be allocated to the multi track unless the claim is one which would normally be allocated to the intermediate track.
7
Q
When does court allocate and assign a claim?
A
- After all parties have filed their directions questionnaires OR when giving directions pursuant to rule 26.4(10), unless it has stayed the proceedings. Court may hold an allocation or assignment hearing if it thinks necessary.
8
Q
Matters relevant to allocation to a track
A
- (a) the financial value, if any, of the claim; (b) the nature of the remedy sought; (c) the likely complexity of the facts, law, or evidence; (d) the number of parties or likely parties; (e) the value of any counterclaim or additional claim and the complexity of any matters relating to it; (f) the amount of oral evidence which may be required; (g) the importance of the claim to persons who are not parties to the proceedings; (h) the views expressed by the parties; and (i) the circumstances of the parties.
9
Q
Notice of allocation/assignment
A
- Court shall serve notice of allocation/assignment on every party.
10
Q
Reallocation and reassignment
A
- Court may on application or on its own initiative subsequently relocate a claim to different track OR reassign claim to different complexity band. If claim allocated to intermediate track and directions in respect of the claim have been given, reallocation can only happen if court decides that there are exceptional reasons to justify doing so. Court can only reassign to a different complexity band where there has been a change in circumstances which justifies reassignment.
11
Q
What do courts take into account when allocating to the fast track?
A
- Where normal track is the fast track then court will allocate to the fast track unless it believes that it cannot be dealt with justly on that track. Court will take into account in particular: limits likely to be placed on disclosure, the extent to which expert evidence is necessary, and whether the trial is likely to last more than one day.
12
Q
Meaning of clear days.
A
- Clear days: If the day on which period begins and ends is defined by reference to an event, the day on which that event occurs is not included. E.g., Notice of an application must be served at least 3 days before the hearing. An application is listed to be heard on Friday 20 October. The last date for service is Monday 16 October. Where specified period is 5 days or less and includes a weekend or holiday then that day does not count. E.g., Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Monday 20 October. The last date for service is Tuesday 14 October. When the period specified for doing an act at the court office ends on a day when it is closed, that act shall be in time if done on the next day on which the court office is open.
13
Q
Case management - unrepresented parties.
A
- When court is exercising case management powers it must have regard to the fact at least one party is unrepresented. Both parties and the court must take as the starting point, when drafting case management directions in multi, intermediate, and fast tracks - any relevant standard directions which can be found online.
14
Q
Courts power to make order on its own initiative + effects.
A
- Where court proposes to make order on its own initiative it may give any person likely to be affected by the order an opportunity to make representations; and where it does so it must specify the time by and the manner in which the representations must be made. Court can make order of its own initiative without hearing the parties or giving them opportunity to make representations. However, where it does do so, the party affected can apply to have it set aside, varied, or stayed (no more than 7 days after service of order) AND the order must contain a statement of the right to make such an application.
15
Q
To which cases do the Filing and exchanging budgets and budget discussion principles apply?
A
- Section applies to all Part 7 multi-track cases except: Claim after 22nd April 2014 for 10 million or more OR Claim after 6th April 2016 made by child OR Where proceedings are subject of a fixed costs or scale costs.
16
Q
Filing and exchanging budgets and budget discussion.
A
- Unless court orders otherwise, all parties except LIP must file and exchange budgets with directions questionnaires if value under 50k OR in any other case - No later than 21 days before the first case management conference. All other parties except LIP must file an agreed budget discussion report no later than 7 days before the first case management conference. Every budget must be dated and verified by a statement of truth signed by a senior legal rep of that party. Even though LIP is not required to prepare a budget, all party’s budgets must be provided to them.
17
Q
Failure to file budget.
A
- Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.
18
Q
Costs management order.
A
- Where costs budgets have been filed and exchanged the court will make a costs management order unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without such an order being made. By a costs management order, the court will: record the extent to which the budgeted costs are agreed between the parties; in respect of the budgeted costs which are not agreed, record the court’s approval after making appropriate revisions; record the extent (if any) to which incurred costs are agreed.
19
Q
When you first complete Precedent H, which is the form for setting a costs budget in legal cases, you can only recover up to either £1,000 or 1% of your total costs (whichever is higher).
A
- When you first complete Precedent H, which is the form for setting a costs budget in legal cases, you can only recover up to either £1,000 or 1% of your total costs (whichever is higher). These total costs include both the costs you’ve already incurred and the costs you expect to incur, as long as these are agreed upon or approved by the court. Any other costs you incur during the budgeting and costs management process can’t exceed 2% of your total costs. This includes both your incurred costs and planned costs, again as long as these are agreed upon or approved.
20
Q
Revision and Verification of Costs Budgets on account of significant developments.
A
- If something major happens in a case that affects the costs (either increasing or decreasing them), the party experiencing these changes (the revising party) must update its budget to reflect these changes. After adjusting their budget, the revising party needs to quickly send this updated budget to the other parties involved in the case for their agreement. They must also send it to the court. The court will then look at the proposed changes to the budget. It can either approve the changes, make its own adjustments, or reject them based on the new developments since the last budget was approved. The court might also decide to hold another meeting to manage costs more thoroughly.
21
Q
Courts to have regard to budgets and to take account of costs.
A
- When making any case management decision, the court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step. The court is not allowed to approve any costs that have been incurred up to and including the date of the costs management hearing. This means costs incurred before the hearing are outside the court’s approval for that session.
22
Q
Assessing costs on the standard basis where a costs management order has been made.
A
- When a legal case has a costs management order, and the court is reviewing costs afterward (this is called “assessing costs on the standard basis”), the court will: (a) Look at the latest budget for the case that was either approved by the court or agreed upon by the parties, (b) Stick to this approved or agreed budget when deciding on costs, unless there is a very good reason to change it, (c) Consider any comments or notes made previously in the legal process, especially those related to unexpected costs or changes.
23
Q
Budget format.
A
- Unless court orders otherwise, a budget must be in the form of Precedent H: Landscape, Easily legible typeface. If the total costs are less than £25,000, or if the value of the claim is less than £50,000, then you only need to fill out and submit the first page of the Precedent H form.
24
Q
Provisional allocation.
A
- If D files a defence, the court officer shall: Provisionally decide and serve a notice of the proposed allocation. This notice will: List any actions the parties must take by a specific date. Ask the parties to fill out a directions questionnaire and share it with all other parties. Provide the court or court office address where the questionnaire should be sent. Explain how to get the directions questionnaire. If it looks like the case fits into the fast track, intermediate track, or multi-track, instruct the parties to submit their suggested case directions by a specified date.
25
Directions questionnaires.
- If the above notice is served, each party must file and serve on other parties, the documents required by the notice by not later than the date specified in it. If the notice relates to the small claims track, the date must be at least 14 days after deemed service. If the notice relates to the fast track, intermediate track, or multi-track, at least 28 days after deemed service. This DATE cannot be varied by agreement between the parties.
26
Stay to allow settlement of the case.
- A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means. If all parties request a stay the proceedings shall be stayed for one month and the court shall notify the parties accordingly. Court can extend stay for as long as it considers appropriate.
27
Directions when allocated to fast track.
- Court shall give directions when they allocate unless it considers that it is necessary to fix a case management conference. When court gives directions it will make order in relation to disclosure and set trial date/period. Directions include: Disclosure, Service of witness statements, Expert evidence, ADR.
28
To vary which dates must the parties apply to the court?
- Any case management conference; any pre-trial review; filing the pre-trial check list; the trial; or the trial period.
29
Directions when allocated to intermediate track.
- Court may give directions or fix a case management conference. When court gives directions it will make order in relation to disclosure and set trial date/period. Directions include: Disclosure, Service of witness statements, Expert evidence, ADR, Pre-trial review, Listing case for trial. Length of witness statements 30 pages per party. Length of expert report 20 pages.
30
Directions when allocated to multi-track.
- Court will give directions and set timetable OR fix case management conference/pre-trial review. Court will fix trial date as soon as practicable and give notice to parties AND specify the date by which they must file a pre-trial checklist. If case management conference set then parties need to try come to agreement as to appropriate directions for the management of the proceedings and submit this at least 7 days before case management conference. If no party files the completed pre-trial check list by the date specified, the court will order that unless a completed pre-trial check list is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.
31
Case management conferences.
- The court will at any case management conference: (1) review the steps which the parties have taken in the preparation of the case, and in particular their compliance with any directions that the court may have given, (2) decide and give directions about the steps which are to be taken to secure the progress of the claim in accordance with the overriding objective, and (3) ensure as far as it can that all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded.
32
Attendance at case management conferences.
- Rule 29.3(2) provides that where a party has a legal representative, a representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend case management conferences and pre-trial reviews. That person should be someone who is personally involved in the conduct of the case, and who has the authority and information to deal with any matter which may reasonably be expected to be dealt with at such a hearing, including the fixing of the timetable, the identification of issues and matters of evidence. Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, the court will expect to make a wasted costs order.
33
Variation of directions.
- Any party which wishes to have direction varied must take steps to do so ASAP. Court will assume that a party who has made no steps within 14 days of service of the order is content. If an application is made for the court to reconsider its decision: (a) it will usually be heard by the judge who gave the directions or another judge of the same level, (b) the court will give all parties at least 3 days’ notice of the hearing, and (c) the court may confirm its directions or make a different order.
34
Failure to comply with case management directions.
- Where a party fails to comply with a direction given by the court any other party may apply for an order that he must do so or for a sanction to be imposed or both of these. Must warn other party. Court may take any delay into account when it decides whether to make an order imposing a sanction or to grant relief from a sanction imposed by the rules or any other practice direction.
35
The trial.
- The trial will normally take place at a Civil Trial Centre but it may be at another court if it is appropriate having regard to the needs of the parties and the availability of court resources. The judge will generally have read the papers in the trial bundle and may dispense with an opening address.
