Case Management, Sanctions and Striking Out (Syllabus 13)

Question 1

What is the scope of the small claims track?

Answer 1

the value of the claim is not more than £10,000 and the value of any claim for damages for personal injuries is not more than £1,000

Question 2

What do damages for personal injuries include?

Answer 2

damages claimed as compensation for pain, suffering and loss of amenity.

Question 3

What is the normal track for any claim for not more than £10,000?

Answer 3

the small claims track

Question 4

What is the scope of the fast track?

Answer 4

for proceedings issued on or after 6th April 2009, of not more than £25,000, and
for proceedings issued before 6th April 2009 of not more than £15,000.

Question 5

What factors must appear for the fast track to be the normal track?

Answer 5

• value of the proceedings is not more than £25,000
• the trial is likely to last for no longer than one day, and
• oral expert evidence is limited to (one expert per party per expert field and expert evidence in two fields)

Question 6

When is the multi-track the normal track?

Answer 6

For any claims for which the small claims or fast track is not the normal track

Question 7

When will the court allocate a claim to a track?

Answer 7

when all parties have filed their directions questionnaires or when giving directions pursuant to rule 26.

Question 8

When will the court allocate a claim to a track if the claim has been stayed?

Answer 8

at the end of period of stay

Question 9

If a claim is referred to the Mediation Service and the court does not receive notification in writing that settlement has been agreed when will the claim be allocated to a track?

Answer 9

no later than 4 weeks from the date on which the last directions questionnaire was filed.

Question 10

Does the court have to hold an allocation hearing?

Answer 10

Only if it is necessary

Question 11

Can the court allocate a claim to the small claims track if it includes a claim by a tenant against his landlord for harassment or unlawful eviction?

Answer 11

No

Question 12

What matters must the court consider when allocating a claim to a track?

Answer 12

(1) the financial value of the claim
(2) the nature of the remedy sought
(3) the likely complexity of the facts, law or evidence
(4) the number of parties or likely parties
(5) the value of any counterclaim or other Part 20 claim and the complexity of matters relating to it
(6) the amount of oral evidence which may be required
(7) the importance of the claim t persons who are not parties to the proceedings
(8) the views expressed by the parties and
(9) the circumstances of the parties.

Question 13

What will the court disregard when assessing the financial value of a claim?

Answer 13

(1) any amount not in dispute
(2) any claim for interest
(3) costs; and
(4) contributory negligence

Question 14

If two claimants have started a claim against the same defendant using the same claim form and each claimant has a claim against the defendant separately how will the court consider the financial value of the claim?

Answer 14

each claimant will be considered separately.

Question 15

What will the court serve when it has allocated a claim to a track?

Answer 15

a notice of allocation on every party.

Question 16

Can the court re-allocate a claim?

Answer 16

Yes

Question 17

How will the court determine what amounts are in dispute?

Answer 17

(1) any amount for which the defendant does not admit liability is in dispute.
(2) any sum in respect of an item forming part of the claim for which judgment has been entered is not in dispute.
(3) any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute.
(4) any sum offered by the defendant which has been accepted in satisfaction of any item which forms a distinct part of the claim is not in dispute.

Question 18

How will the court deal with the value of the case if the case involves more than one money claim?

Answer 18

the court will not aggregate these, instead it will generally regard the largest of them as determining the financial value of the claims.

Question 19

How long is a day of trial?

Answer 19

5 hours

Question 20

Is the fact that the trial might last longer than one day a conclusive reason not to allocate the claim to the fast track?

Answer 20

No but it is a valid consideration

Question 21

What can a party do if they are dissatisfied with where the court has allocated the claim?

Answer 21

they can appeal or apply to the court to re-allocate the claim.

Question 22

When would a party appeal the decision of allocation?

Answer 22

when the order was made at a hearing at which he was present or represented or of which he was given due notice

Question 23

When would a party apply to the court to re-allocate the claim?

Answer 23

In any case other than where he was at the hearing, represented or given due notice.

Question 24

What are clear days?

Answer 24

the day on which the period begins and if the day it ends is defined by reference to an event, the day on which that event occurs are not included.

Question 25

Where the specified period is 5 days or less what days do not count when counting time?

Answer 25

(1) Saturday
(2) sunday; and
(3) bank holiday, Christmas Day or good Friday.

Question 26

What happens if the period for doing any act at the court office ends on a day that the court office is closed?

Answer 26

the act will be deemed to be done in time if done on the next day on which the court office is open.

Question 27

Can time limits be varied by parties?

Answer 27

Yes unless a rule or PD states otherwise, the parties can agree in writing to vary time limits

Question 28

What time limits cannot be varied by written agreement?

Answer 28

(1) sanctions have effect unless defaulting party obtains relief
(2) variation of case management timetable (fast tack)
(3) variation of case management timetable (multi-track)

Question 29

What are the court’s general powers of management?

Answer 29

the court may-

(1) extend or shorten the time for compliance with any rule, PD or court order.
(2) adjourn or bring forward a hearing
(3) require that any proceedings in the High Court be heard by a Divisional Court of the High Court
(4) require a party or a party’s legal representative to attend the court
(5) hold a hearing and receive evidence by telephone or by using any other method of direct oral communications
(6) stay the whole or part of any proceedings or judgment
(7) consolidate proceedings
(8) try two or more claims on the same occasion
(9) separate trial of any issue.

Question 30

What are the powers of case management when there are unrepresented parties?

Answer 30

this rule applies in any proceedings where at least one party is unrepresented.

when the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented and do its best to further the overriding objective.

Question 31

Can the court exercise its power on its own initiative?

Answer 31

Yes

Question 32

What can the court do when it proposes to make an order of its own initiative?

Answer 32

(1) it may give any person likely to be affected by the order an opportunity to make representations and
(2) where it does so it must specify the time by and the manner in which the representations must be made.

Question 33

If the court makes an order of its own initiative how much notice should they give the parties of any hearing?

Answer 33

at least 3 days’ notice

Question 34

What happens where the court makes an order which includes a term that the statement of case shall be struck out if a party does not comply with an order and the party against whom that order is made does not comply with it?

Answer 34

A party may obtain judgment with costs by filing a request for judgment if - the order relates to the whole of a statement of case and where the party wishing to obtain judgment is the claimant the claim is for a specified amount of money, an amount of money to be decided by the court, delivery of goods.

Question 35

What is the general power of the court to rectify matters where there has been an error of procedure?

Answer 35

the error does not invalidate any step taken in the proceedings unless the court so orders; and the court may make an order to remedy the error.

Question 36

What is the purpose of costs management?

Answer 36

the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective

Question 37

Who must file and exchange costs budgets?

Answer 37

all parties except litigants in person

Question 38

When must the costs budget be filed and exchanged?

Answer 38

(1) when the value on the claim form is less than £50,000 with their directions questionnaire; or
(2) in any other case, not later than 21 days before the first case management conference.

Question 39

When must the parties file an agreed budget discussion report?

Answer 39

No later than 7 days before the first case management conference

Question 40

If there is a litigant in person are they expected to prepare a budget?

Answer 40

No but they must be provided with a copy of the other party’s budgets.

Question 41

What is the consequence of failing to file a budget?

Answer 41

the party will be treated as having filed a budget comprising only the applicable court fees.

Question 42

What is a costs management order?

Answer 42

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 a proportionate cost in accordance with the overriding objective without such an order being made.

Question 43

Can the court make a costs management order, and if it can when?

Answer 43

Yes, it has a discretion to make such an order at any time

Question 44

When must a party revise its budgeted costs?

Answer 44

when there is a significant development in the litigation that warrants revisions of the budget upwards or downward

Question 45

What must a party do if they wish to revise their budget?

Answer 45

(1) serve particulars of the variation proposed on every other party;
(2) confine the particulars to the addition costs occasioned bu the significant development
(3) certify that the additional costs are not included in any previous budgeted costs or variation.

Question 46

What must the revising party submit to the court?

Answer 46

the particulars of variation with the last approved/agreed budget with an explanation of the points of difference if they have not been agreed

Question 47

What are the court’s powers regarding the variation of costs?

Answer 47

the court may approve, vary or disallow the proposed variations

Question 48

What is a costs management conference?

Answer 48

any hearing which is convened solely for the purpose of costs management is referred to as a “costs management conference”:

Question 49

How should costs management conferences be conducted?

Answer 49

where practical by telephone or in writing

Question 50

What will the court have reared to when making any case management decisions?

Answer 50

any available budgets of the parties and the costs involved in each procedural step.

Question 51

What can the court not do in relation to costs incurred up to and including the date of the costs management hearing?

Answer 51

the court cannot approve costs incurred up to and including the date of any costs management hearing but may comment on those costs and take them into account when considering the reasonable and proportionality of budgeted costs

Question 52

How will the court assess costs where a costs management order has been made?

Answer 52

costs will be assessed on the standard basis

Question 53

What will the court do when assessing costs on the standard basis?

Answer 53

the court will-

(a) have regard to the receiving party’s last approved or agreed budgeted costs for each phase of the proceedings
(b) not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so; and
(c) take into account ant comments made and recorded on the face of the order.

Question 54

When is the court likely to misapply costs management?

Answer 54

when the claimant has a limited or impaired life expectation (5 years or less remaining).

Question 55

When might an order for the provision of costs budgets be particularly appropriate?

Answer 55

(1) unfair prejudice petitions
(2) disqualification proceedings
(3) applications under TOLATA
(4) claims pursuant to the Inheritance Act
(5) any Part 8 or other claims or applications involving a substantial dispute of fact and/or likely to require oral evidence; and
(6) personal injury and clinical negligence cases where the value of the claim is £10 million or more

Question 56

What documents should be lodged for costs budgeting purposes?

Answer 56

save in exceptional circumstances the parties are not expected to lodge any documents other than Precedent H and the budget discussion report. Precedent T is to be used when the budget is being varied

Question 57

What must be the format of a budget?

Answer 57

a budget must be in the form of Precedent H. It must be in landscape format with an easily legible typeface.

In any case where a party’s total costs do not exceed £25,000 or the value of the claim as stated on the claim form is less than £50,000, the parties must only use the first page of Precedent H.

Question 58

Can the time spent preparing the costs budget be claimed in the draft budget?

Answer 58

No

Question 59

What is the contingent cost section of the form for?

Answer 59

anticipated costs which do not fall within the main categories set out in the form go into this section

Question 60

Are written assumptions normally required by the Court in cases where the parties are only required to lodge the first page?

Answer 60

No

Question 61

What must the budget discussion report set out?

Answer 61

(1) those figures which are agreed for each player
(2) those figures which are not agreed for each phase; and
(3) a brief summary of the grounds of dispute

Question 62

What will the court consider when reviewing budgeted costs?

Answer 62

whether the fall within the range of reasonable and proportionate costs.

Question 63

What will a court officer do if a defendant files a defence?

Answer 63

they will provisionally decide the track which appears to be most suitable for the claim; and serve on each party a notice of proposed allocation

Question 64

What will the notice of proposed application do?

Answer 64

(1) specify any matter to be complied with by the date specified in the notice
(2) require the parties to file a completed directions questionnaire and serve copies on all other parties
(3) state the address of the court or the court office to which the direction questionnaire must be returned
(4) inform the parties how to obtain the directions questionnaire; and
(5) if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposes directions by the date specified in the notice.

Question 65

When will the court serve the notice of proposed application when there are two or more defendants?

Answer 65

either when all of them have filed a defence or when the period for the filing for the last defence has expired, whichever is sooner

Question 66

If a notice of proposed allocation is served what must the parties serve and when?

Answer 66

the documents required by the notice by no later than the date specified-

(1) small claims track - 14 days
(2) fast track/multi track - 28 days

Question 67

Can the time for complying with a notice of proposed allocation be varied by agreement of the parties?

Answer 67

No

Question 68

If the claim is a transfer of money claim in the County Court and a party does not comply with the date specified on the notice what will the court do?

Answer 68

serve a further notice on the party requiring them to comply within 7 days and if that party fails to comply the party’s statement of case will be struck out without further order from the court.

Question 69

Can the parties request a stay during the case management phase?

Answer 69

yes this can be requested when filing the completed directions questionnaire.

Question 70

How long will the proceedings be stayed for if the parties request a stay?

Answer 70

1 month and the court will notify the parties accordingly

Question 71

If the court considers that a stay would be appropriate can they direct that the proceedings should be stayed?

Answer 71

Yes

Question 72

where the court stays proceedings under CPR r.26.4 what is the duty of the claimant?

Answer 72

to inform the court if a settlement is reached.

Question 73

What is the scope of CPR r.26.4A?

Answer 73

it applies to claims started in the County Court which would normally be allocated to the small claims track, it does not apply to any RTA, PI or housing disrepair claim.

Question 74

What is the meaning of the Mediation Service?

Answer 74

the Small Claims Mediation Service operated by HMCTS

Question 75

If all parties consent on their directions questionnaires to the claim being referred to mediation what will happen?

Answer 75

the claim will be referred to the Mediation Service

Question 76

if a claim to which CPR r.26.4A applies is settled what happens?

Answer 76

proceedings will be stayed with permission to apply for judgment for the unpaid balance of the outstanding sum of the settlement agreement or the claim to be restored for hearing of the full amount claimed. UNLESS the parties have agreed that the claim is to be discontinued or dismissed.

Question 77

On the fast track, what matters are dealt with by directions?

Answer 77

(1) disclosure of documents
(2) service of witness statements; and
(3) expert evidence

Question 78

What can the court do if they decide not to direct standard disclosure?

Answer 78

direct that no disclosure take place or specify the documents or the classes of documents which the parties must disclose.

Question 79

Can the parties vary the case management timetable on the fast track?

Answer 79

Yes in some circumstances

Question 80

How can a party vary the case management timetable?

Answer 80

(1) a party must apply to the court to vary the date fixed for-
(a) the return of the pre-trial checklist
(b) the trial; or
(c) the trial period.

Any other dates can be varied by written agreement between the parties.

Question 81

What is the scope of CPR r.29?

Answer 81

CPR r.29 contains general provisions about the management of cases allocated to the multi-track and applies only to cases allocated to that track

Question 82

What directions will the court give in cases on the multi-track?

Answer 82

it will give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the trial; or
fix a case management conference or a pre-trial review.

Question 83

When will the court fix the trial date on the multi-track?

Answer 83

as soon as is practiable

Question 84

When might the court fix a case management conference or pre-trial review for a case on the multi-track?

Answer 84

any time after the claim has been allocated.

Question 85

Who must attend the case management conference or pre-trial review?

Answer 85

If a party has a legal representative, a representative who is familiar with the case and has sufficient authority to deal with any issues tat are likely to arise.

Question 86

What steps must be taken by parties on the multi-track?

Answer 86

they must endeavour to agree appropriate directions for the management of the proceedings and submit agree directions to the court at least 7 days before any CMC.

Question 87

How can parties on the multi-track vary a case management timetable?

Answer 87

they must apply to the court to vary the sate which the court has fixed for-

• a case management conference
• a pre-trial review
• the return of a pre-trail check list
• the trial; or
• the trial period

Question 88

Is a pre-trial checklist always necessary on the multi-track ?

Answer 88

no, if the court considers the claim can proceed to trial without the need for a pre-trial checklist then they will not send one.

Question 89

When must the pre-trial checklist be completed and filed?

Answer 89

on the date specified by the court

Question 90

what happens of neither party files a completed pre-trial checklist?

Answer 90

the court will order that unless a completed pre-trial checklist is filed within 7 days fro, service of that order, the claim, defence and any counterclaim will be struck out.

Question 91

When will the court serve notice of a pre-trial review?

Answer 91

at least 7 days before the date fixed for the hearing

Question 92

When will the court set a trial timetable on the multi-track?

Answer 92

As soon as practicable after each party has filed a completed pre-trial checklist, the court held a listing hearing or the court has held a pre-trial review.

Question 93

How will the trial be conducted on the multi-track?

Answer 93

unless the trial judge directs otherwise, the trial will be conducted in accordance with any order previously made.

Question 94

What are the hallmarks of the multi-track?

Answer 94

the ability of the court to deal with cases of widely differing values and complexity; and the flexibility given to the court in the way it will manage a case in a way appropriate to its particular needs.

Question 95

Who will normally deal with case management?

Answer 95

(1) a Master in cases proceeding in the Royal Courts of Justice
(2) a District Judge in cases proceeding in a District Registry of the High Court, and
(3) a District Judge or a Circuit Judge in cases proceeding in the County Court

Question 96

Upon allocation of a case to the multi-track, what will the court consider?

Answer 96

whether it is desirable or necessary to hold a case management conference straight away or whether to give directions of its own initiative.

Question 97

When do sanctions have effect?

Answer 97

where a party fails to comply with a rule, PD or court order, any sanction has effect unless the party in default applies for and obtains relief from the sanctions.

Question 98

Where the sanction is the payment of costs, how can the party in default obtain relief?

Answer 98

by appealing the order of costs.

Question 99

Where a rule, PD or court order requires a party to do something within a specified time can the time be extended?

Answer 99

Yes, unless the court orders otherwise. It can be extended by prior written agreement of the parties for up to a maximum of 28 days, provided that such an extension doesn’t put a trial date at risk.

Question 100

What will the court consider when there is an application for relief from sanctions?

Answer 100

all the circumstances of the case, so as to enable it to deal justly with the application including the need-

(a) for litigation to be conducted efficiently and at a proportionate cost; and
(b) to enforce compliance with rules, PDs and orders.

Question 101

What is necessary when a party applies for relief from sanctions?

Answer 101

an application must be supported by evidence

Question 102

What case contains the test for relief from sanctions?

Answer 102

Denton

Question 103

What is the three-stage test in Denton?

Answer 103

(1) seriousness/significance of the breach
(2) why did the default occur?
(3) evaluate all the circumstances of the case.

Question 104

What is a good measure of whether the breach is serious/signficant?

Answer 104

whether the breach imperils the trial date.

Question 105

Do all the stages of the Denton test have to be satisfied?

Answer 105

Yes, if any of them do not apply then the applicant should be granted relief.

Question 106

What does the third stage of Denton require consideration of?

Answer 106

all the circumstances of the case, especially the overriding objective and the need to deal with cases proportionately.

Question 107

What should parties do if they think another party has defaulted?

Answer 107

be prepared to agree to a 28 day extension and not take advantage of mistakes by other parties.

Question 108

Can the Denton principles be used in an application to set aside a default judgment?

Answer 108

Yes, as default judgment is essentially a sanction.

Question 109

When can a court strike out a statement of case?

Answer 109

if it appears to the court that-

(a) the statement of case discloses no reasonable grounds for bringing or defending the claim
(b) the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, PD or court order

Question 110

What can the court do when they have struck out a claimant’s statement of case, the claimant has been ordered to pay costs to the defendant and before the claimant pays those costs starts another claim?

Answer 110

the court may on the application of the defendant stay that other claim until the costs of the first claim have been paid.

Question 111

What should the court do if they strike out a claim and deem it to be totally without merit?

Answer 111

they should record that fact and must at the same time consider whether it is appropriate to make a civil restraint order.

Question 112

What is included as a statement of case, for the purposes of strike out?

Answer 112

claim form, PoC, defence, counterclaim, Part 20 claim or a reply to a defence.

Question 113

When is an order for strike out usually made?

Answer 113

during the pre-trial stages of proceedings.

Question 114

When will a PoC be deemed to disclose no reasonable grounds for brining a claim?

Answer 114

where it sets out no facts indicating what the claim is about; those claims which are incoherent and make no sense; and those claims which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

Question 115

When will a defence be deemed to disclose no reasonable grounds for defending the claim?

Answer 115

where it consists of a bare denial, or it sets out no coherence statement of facts, or the facts it sets out while coherent would not even amount to a defence in law to the claim.

Question 116

Does striking out a claim affect the right of access to a court?

Answer 116

No.

Question 117

What does the term “abuse of court process” mean?

Answer 117

“using that process for a purpose or in a way significantly different from its ordinary and proper use”

Question 118

In all cases of abuse of process, should the statements of case be striked out?

Answer 118

No, it should only be struck out if this supports the overriding objective.

Question 119

What are the powers of the court to strike out statements of case where matters should have been raised in previous proceedings?

Answer 119

the court can strike these out under abuse of process

Question 120

How will the court decide whether an issue should have been raised in previous proceedings?

Answer 120

by adopting a broad merit-based judgment

Question 121

What is a collateral attack upon an earlier decision?

Answer 121

the initiation of proceedings for the purposes;ose of mounting a collateral attack upon a final decision against the plaintiff

Question 122

Can the court make a conditional strike out order?

Answer 122

Yes, if a party does not follow a particular rule, PD or procedure then the statement of case will be struck out.

Question 123

What is the scope of CPR Part 38?

Answer 123

CPR Part 38 is about discontinuance

Question 124

Is a claimant who claims more than one remedy, and subsequently abandons his claim to one or more of the remedies but continues with his claim for the other remedies treated as discontinuing all or part of a claim?

Answer 124

No

Question 125

When can a claimant discontinue all or part of a claim?

Answer 125

at any time

Question 126

When does a claimant need to obtain the permission of the court?

Answer 126

if the court has granted an interim injunction or any party has given an undertaking to the court.

Question 127

What happens if the claimant has received an interim payment but wants to discontinue the claim?

Answer 127

he can discontinue the claim but only if the defendant who made the interim payment consents in writing or the court gives permission.

Question 128

Can a claimant discontinue a claim if there is more than one claimant?

Answer 128

The claimant may not discontinue unless every other claimant consents in writing or the court gives permission.

Question 129

What is the procedure for discontinuing a claim?

Answer 129

to discontinue a claim or part of a claim a claimant must-

(1) file a notice of discontinuance; and
(2) serve a copy of it on every other party to the proceedings.

Question 130

Is there a right to apply to have a notice of discontinuance set aside?

Answer 130

yes the defendant may apply to have the notice of discontinuance set aside.

Question 131

When does a defendant have to apply to have a notice of discontinuance set aside?

Answer 131

the defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

Question 132

When does discontinuance come into effect?

Answer 132

on the date when notice of discontinuance is served.

Question 133

Who has liability for costs where the claim is discontinued?

Answer 133

unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant has incurred on or before the date on which notice of discontinuance was served.

Question 134

If a claimant discontinues a claim, can they make another claim against the same defendant?

Answer 134

Yes but the claimant needs the permission of the court if he discontinued the claim after the defendant filed a defence, and the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.