11 Case Management/Sanctions Flashcards
What are the Courts general powers of management?
The court may:
- Extend or shorten the time for compliance;
- Adjourn of bring forward a hearing
- Require proceedings to be heard in another court
- Require a party or their legal representative to attend court
- Hold a hearing an d receive evidence by telephone
- Direct part of proceedings (such as counterclaim) to be dealt with as separate proceedings;
- Stay the whole or part of any proceedings or judgment
- Consolidate proceedings
- Try 2 or more claims on same occasion
- Direct a separate trial of any issue
- Decide order on which issues to be tried
- Exclude an issue from consideration
- Dismiss or give judgment on a claim after a decision on a preliminary issue
- Order any party to file and exchange a costs budget
- Take any other step, to order, including hearing an ENE
- When the court makes an order – it may
- Make it subject to conditions; and
- Specify consequence of non-compliance
When the court makes order for a party to pay a sum of money into court if the party has, without good reason, not complied with a rule, the court must have regard to:
- The amount in dispute; and
- The costs
Case management – unrepresented parties
When exercising powers of case management, it must have regard to
the fact that at least one party is unrepresented.
Both parties and court, must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions and adapt them.
Court’s power to make order of its own initiative
Where court proposes to make orders on own initiative, it
- It may give opportunity to make representations; and
- Where it does, specify the time and manner.
Where court proposes to:
- Make an order; and
- Hold a hearing to decide whether to make order
Must give [TIME]
give 3 days’ notice.
Power to strike out a SoC
Can strike out SoC if:
- SoC discloses no reasonable grounds for bringing or defending claim;
- SoC abuse of court’s process or likely to obstruct the just disposal of proceedings; or
- Failure to comply with rule, PD or court order.
If court strikes out on basis it is totally without merit, it must record this and consider whether appropriate to make a civil restraint order.
The court can strike out of its own volition.
Where there is no compliance with rule, PD or court order, what happens?
court MAY instead order = pay sum of money to court.
Ultimate question in deciding whether to impose strikeout is the proportionality of the sanction itself.
Applications to strike out SoC MAY be without evidence. If a strike out application made, court MUST hear oral arguments on behalf of the applicant before refusing it.
What does:
the
Statement of case discloses no reasonable grounds for bringing or defending the claim
Includes:
Includes:
- No facts indicating what claim is about
- Incoherent claims
- No legally recognisable claim
A defence may fall within this where it consists of a bare denial of facts.
An application to strike out should not be granted unless the court is certain that the claim is bound to fail.
What is
improper collateral purpose?
Improper collateral purpose = Abuse of process to pursue a claim for an improper collateral purpose.
Improper collateral purpose = where a litigant has an ulterior purpose for litigation.
What is a judgment without trial after striking out?
Where court makes order that a case will be struck out if there is non-compliance, and the party doesn’t comply, a party may obtain judgment with costs by filing a request for judgment.
The request must state that the right to enter judgment has arisen because the court’s order has not been complied with
What happens where a Statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings?
The striking out of a valid claim should be the last option.
What is
Res Judicata ?
This includes:
- Prohibition on relitigating a cause of action held to exist (or not) in earlier proceedings; and
- Prohibition on relitigating an issue decided in earlier proceedings even though it is a different cause of action.
It does not follow that a matter should have been raised in earlier proceedings because it could have been raised in those proceedings. A broad, merits-based judgment should be adopted, taking into account all the public and private interests involved and all the facts.
Collateral attacks upon earlier decisions
A potential form of abuse of process is where a party mounts an attack on a final decision adverse to them which has been made b a court of competent jurisdiction.
When does relief from sanctions not apply?
Relief from sanctions does not apply where sanction imposed is an order for the payment of costs. In this case, the defaulting party may only obtain relief by appealing against the order for costs.
What are the two requirements for relief from sanctions?
Two requirements for relief from sanctions:
- Litigation = efficiently + at proportionate cost;
- Need to enforce compliance with rules, PD and court orders.
Summary of guidance in Denton
A judge should address an application for relief from sanctions in 3 stages:
- Identify and assess the seriousness and significance of the “failure to comply with any rule, PD or court order”
If the breach is neither significant nor serious, the court is unlikely to spend much time on the other requirements.
- Reasons the default occurred
- All the circumstances of the case, so as to enable the court to deal justly with the application
.
What is:
Stage one DENTON: assess seriousness and significance of breach
Doesn’t depend on whether breach was trivial, but rather whether the breach was serious and significant.
Assessment of seriousness or significance should concentrate on the very breach which relief is sought.
Sanctions have effect unless defaulting party obtains relief
wHERE a rule requires someone to do something within time, can the time be extended?
Where a rule, PD or court order requires a party to do something within a specified time, and specifies the consequence of failure to comply, the time for doing the act may not be extended between the parties unless there is written agreement of the parties for up to 28 days, provided that such extension does not put at risk a hearing date.
Relief from sanctions
The court will consider the application for relief from sanctions, considering all circumstances so as to enable it to deal justly with the application including the need:
- For litigation to be conducted efficiently and at proportionate cost; and
- To enforce compliance with rules, PD and orders
An application for relief must be supported by evidence.
What is Denton Second stage: reasons for default
Includes:
- Fact defaulting party or solicitor suffered from a debilitating illness or was involved in an accident;
- Later developments
- Circumstances outside the control of the party in default.
What is the third stage of Denton?
and what are the factors?
Factors important here:
- Breach prevented court from dealing efficiently and at proportionate cost;
- Failing to comply with rule, PD and order
- Sanction imposed is proportionate to the breach
- Promptness
- Whether defaulting party has a poor record for compliance
- Other past or current breaches
- The need for litigation to be conducted efficiently and at proportionate cost and
- The need to enforce compliance with rules, PD and court orders.
Must be considered in every case.
Is it okay for opposing parties to take advantage of the other party’s mistake?
Importance of discouraging opportunism by non-defaulting party
Inappropriate for litigants to take advantage of mistakes made by opposing parties.
What should happen where:
Where:
- Failure is not serious or significant;
- Good reason is demonstrated;
- Otherwise obvious that relief from sanctions is appropriate
Parties should agree that relief from sanctions be granted without the need for further costs in litigation. The parties in any event, should agree reasonable extensions of up to 28 days. Heavy costs sanctions should be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions.
Are the Denton principles applicable for default judgment?
Yes
What is the general power of court to rectify error of procedure?
Where error of procedure = 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.
What can the court do in Multi-track cases?
The court may, in multi-track cases, make a “costs management order”. Where costs budgets have been filed and exchanged, the court will make a costs management order unless satisfied that litigation can be conducted justly and at proportionate cost without an order being made.
By costs management order, the court will:
- Record extent to which the budgeted costs are agreed;
- Where budgeted costs not agreed, record the court’s approval after revisions;
- Record the extent incurred costs are agreed
Whether or not the court makes a costs management order, it may record on the case management order any comments about the incurred costs.
What is a Costs management conference
= Applies to multi track.
Costs management conferences should be conducted by telephone or in writing.
When making any case management decision, the court must have regard to:
- any available budgets of the parties and
- costs of procedural steps
Assessing costs on standard basis
Where a costs management order has been made, when assessing costs on standard basis, the court will:
- have regard to approved or agreed budgeted costs
- not depart from this unless good reason; and
- take into account s any comments record on face of order.
Who must file and exchange budget in the MULTI-TRACK case?
Unless ordered otherwise, all parties except litigants in person MUST file and exchange budgets –
- Where value is less than £50,000, with their directions questionnaire; or
- In any other case, no later than 21 days before first case management conference
Where party files and exchanges a budget, all other parties, not litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference.
In the multi track case, what if you failed to file a budget?
treated as filing a budget comprising only court fees, unless court orders otherwise.
What are Part 7 cases?
And what are the costs in this case?
In most Part 7 multi track claims with a value of less than 10 million, parties must file and exchange costs budgets.
- The court has discretion to make order for costs budgets. Where costs budgets are file and exchanges, the court will consider making a costs management order.
- Where claimant has limited life expectancy (5 years or less), the court will disapply cost management.
What is the budget format?
Unless otherwise ordered, a budget must be in format of Precedent H. It MUST be:
- dated
- verified by a SoT signed by a senior legal representative of the party.
What happens where the budget doesnt exceed £25,000 or the value stated on the claim form is less than £50,000?
Where budget does not exceed £25,000 or value stated on claim form is less than £50,000 the parties must only use the first page of Precedent H. All parties except litigants in person MUST file + exchange costs budgets with directions questionnaires. Litigant in person MUST be provided with copy of budget of other person though.
After receipt of costs budgets, parties (not litigants in person) must
must discuss each others’ budgets and compile budget discussion report, which must set out:
- Figures agreed;
- Figures not agreed; and
- Brief summary of grounds of dispute
What will the allocation notice do?
The notice of allocation will:
- specify any matter to be complied with by a certain date;
- require parties to file a completed directions questionnaire and serve copies
- state the address of the court or court office to which the directions questionnaire must be returned;
- inform parties how to obtain directions questionnaire; and
- if a case appears suitable for allocation to the fast track or multi track, require parties to file proposed directions by a certain date.
Msut the court serve on an unrepresented party a directions questionnaire?
yes
If the allocation notice is served, each party must file and serve by specified date.
What is the date for:
!0 SMall claims track
2) Fast/multi track?
- small claims track = 14 days
- fast or multi-track = 28 days
after the date when it is deemed to be served on the party.
The date for complying with a notice may not be varied by agreement of parties.
Where costs budgets are filed and exchanged, the court will normally make a costs management order -
- Recoverable costs shall not exceed the higher of £1,000 or 1% of the total incurred costs and budgeted costs; and
- All other recoverable costs of the budgeting and costs management process shall not exceed 2% of total incurred costs and budgeted costs.
Where budgeted or incurred costs are agreed, the court will record this. Where not agreed, the court will review them.
When reviewing budgeted costs, the court wil:
not undertake a detailed assessment in advance, but will consider if it falls within the range of reasonable and proportionate costs. Court wont revise costs, but may record its comments on incurred costs.
Must a litigant in person be required to prepare a budget?
A litigant in person, even though not required to prepare a budget, shall be provided with a copy of the budget of any other party.
Can a court in costs management hearing fix or approve hourly rates claimed in the budget?
NO
What happens if the court REFUSES to approve budgeted costs?
If court REFUSES to approve budgeted costs = cannot make costs management order because agreed/approved budgeted costs is a precondition for a costs management order.
- Cases where a costs management order has been made. When assessing costs on standard basis, the court will:
- Have regard to receiving parties’ last approved/approved budgeted costs;
- Not depart from these costs unless good reason
- Take into accounts comments recorded on fact of any court order about incurred costs.
- Cases where costs budgets have been used, but no costs management order. One of the factors to look at is the receiving party’s last approved budget.
When can a party ask for a stay for settlement?
Party May when filing the completed directions questionnaire make a written request for proceedings to be stayed while parties try and settle by ADR.
STAY = one month.
Where proceedings are stayed, the claimant must tell the court if settlement is reached. If not, the court will give directions as to the management of the case as appropriate.
When will a claim be referred to the Mediation service?
Where all parties indicate on directions questionnaire to mediate = claim will be referred to the Mediation Service.
When will a claim not be referred to a Mediation Service?
- road traffic accidents, personal injury or housing disrepair claims; or
- any claim where a party does not agree to referral to the Mediation Service.
What happens if a claim is settled?
proceedings will be automatically stayed with permission to apply for:
- judgment for unpaid balance of outstanding sum of settlement agreement; or
- claim to be restored
unless parties have agreed the claim is to be discontinued or dismissed.
When does the court allocate a claim to a track?
Allocation
The court will allocate the claim to a track when all parties have filed their directions questionnaire, unless it has stayed proceedings, in which case, it will allocate it to a track at the end of the period of stay.
What falls under the small claims track?
Small claims track:
- Personal injuries
- Value is not more than £10,000; and
- Value for PSLA is not more than £1,000
- Any claim which includes a claim by tenant of residential premises against landlord where:
- Tenant seeks order requiring landlord to carry out repairs to premises
- Costs is estimated to be not more than £1,000
- Value of any other claim not more than £1,000
The small claims track is normal for any claim not more than £10,000.
The court will not allocate to the small claims track if claim by tenant of residential presmises against landlord for REMEDY of HARRASSMENT or UNLAWFUL CONVICTION
The fast track is normal for:
- Value not more than £25,000; and
- Normal only where court considers that –
- Trial likely to last longer than one day
- Oral expert evidence at trial will be limited to:
- One expert per party; and
- Expert evidence in 2 expert fields
In assessing financial value when allocating a case to a track, the court disregards:
- Amount not in dispute;
- This includes
- Amount the defendant does not admit liability is in dispute
- Any sum forming part of claim for which judgement has been entered (e.g. summary judgment) is not in dispute;
- Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute
- Any sum offered by D, accepted by C is not in dispute.
- This includes
- Claim for interest;
- Costs; and
- Contributory negligence
What does the court take into account when deciding fast track allocation?
Where allocating, the court will take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether trial is likely to last longer than one day.
When considering the likely length of trial, a day = 5 hours, and so will consider if this is sufficient time.
The court will also take into account case management directions that are likely to be given and the court’s power to control evidence and limit cross-examination.
The possibility that a trial might last longer than one day is not conclusive for allowing the court to allocate it to the multi-track.
Re-allocation of claims and the variation of directions
Where party is dissatisfied with order made allocating claim to track, he may:
appeal or apply to court to re-allocate the claim.
If a party is dissatisfied with order made allocating a claim to a track.
He should APPEAL if:
if order was made at a hearing that:
- he was not present or
- represented or
- where no notice was given.
In other cases, he should apply to the court to re-allocate the claim.
What is NOT discontinuance?
A claimant who claims more than one remedy and then abandons his claim = NOT discontinuance
When may a Claimant discontinue all or part of a claim
AND HOW?
Claimant may discontinue all or part of a claim at any time
When MUST a claimant obtain permission to discontinue a claim?
- the court granted interim injunction; or
- any party gave undertaking to the court.
Where claimant received interim payment, he may discontinue that claim only if:
- the defendant who made the interim payment consents in writing; or
- court gives permission
Where there is more than one claimant, a claimant may not discontinue unless:
- every other claimant consents in writing; or
- court gives permission.
Procedure for discontinuing
To discontinue a claim, a claimant must –
- file a notice of discontinuance; and
- serve a copy to everyone
The claimant must state in notice of discontinuance which he files that he served notice of discontinuance on every party. If claimant needed consent, he must attach a copy of this to the notice of discontinuance.
Right to apply to have notice of discontinuance set aside
Where claimant discontinues, the defendant may apply to have the notice of discontinuance set aside. He must do this within:
28 days after notice of discontinuance was served on him.
When discontinuance takes effect where permission of the court is not needed
Discontinuance against D takes effect when
notice of discontinuance is served on him. But this does not affect proceedings to deal with costs.
What is the Liability for costs in discontinuance?
Unless ordered otherwise, a claimant who discontinues is liable for costs that the D incurred before or on the date notice was served. But this rule does not apply to small claims track.
What is liability for costs for discontinuance in SMALL CLAIMS COURT?
Unless ordered otherwise, a claimant who discontinues is liable for costs that the D incurred before or on the date notice was served. But this rule does not apply to small claims track.
Discontinuance and subsequent proceedings
A Claimant who discontinues a claim needs permission of the court to make another claim against the same defendant if –
- he discontinued the claim after the defendant filed a defence; and
- other claim arises out of the same facts or substantially the same facts.
FAST TRACK
When the court allocates a case to the fast track, the court must
must give directions for management of the case and set a timetable
FAST TRACK
When the court allocates a case to the fast track, the court must give directions for management of the case and set a timetable. When giving directions, the court will:
- Fix a trial date; or
- Fix a period, not exceeding 3 weeks within which the trial is to take place.
The trial date will be specified in the notice of allocation.
The standard period between giving directions and trial will be no more than 30 weeks.
FAST TRACK
Directions include:
- Disclosure of documents;
- Service of W/S; and
- Expert evidence
With Fast track,
if the court decides NOT to direct standard disclosure, if may
- Direct that no disclosure take place; or
- Specify the documents or class of documents parties must disclose.
Variation of case management timetable
A party must apply to court if he wishes to vary the date which the court has fixed for (fast track) –
- Return of pre-trial check list
- The trial; or
- Trial period.
Any date set by the court above, cannot be varied by the parties if it would mean variation of any date mentioned above.
When will the court send a pre-trail checklist?
The court will send a pre-trial checklist for completion unless it considers that it is unnecessary.
WHAT HAPPENS IF NO party files the completed pre-trial check list?
the court will order that unless it is filed within 7 days from service of that order, the claim, defence, and counterclaim will be struck out without further order
Pre-trial review
If on receipt of the parties’ pre-trial check lists, the court decides:
- To hold a pre-trial review; or
- To cancel a pre-trial review which has already been fixed,
It will
serve a notice at least 7 days before date fixed for the hearing.
Setting a trial timetable and confirming the trial date/week
As soon as practicable after:
- Completing pre-trial check list;
- Listing hearing; or
- Pre-trial review
the court will:
The court will
- Set a timetable for trial unless timetable already fixed, or it would be inappropriate;;
- Confirm date for trial; and
- Notify parties of trial timetable.
Unless trial judge directs otherwise, the trial will be conducted in accordance with any order previously made.
Multi track
When drafting case management directions, both parties and court should take as their starting point,
any relevant model directions and standard directions.
MULTI-TRACK
Case management
When allocating a case to the multi court, the court will:
- Give directions for management of case and set a timetable; or may
- Fix
- Case management conference; or
- Pre-trial review
Or both, and give such other directions relating to management as it sees fit.
When court fixes trial date, it will give notice and specify date parties must file pre-trial check list.
MULTI-TRACK
Case management conference and pre-trial review
The court may fix:
1)
2)
At any time after claim has been allocated.
- A case management conference; or
- Pre-trial review
What must the legal representative do at multi track cases?
A legal representative:
- Familiar with the case; and
- With sufficient authority to deal with issues likely to arise
Must attend case management conferences and pre-trial reviews.
What must the parties do in multi track cases?
The parties must endeavour to agree appropriate directions and submit agreed directions or proposals at least 7 days before case management conference. Where agreed, the case management conference will be vacated.
In multi track cases when must the parties endeavour to agree appropriate directions?
7 days before case management conference.
MULTI-TRACK
Variation of case management timetable
A party must apply to the court if he wises to vary the date which the court has fixed for –
- Case management conference;
- Pre-trial review
- Return of pre-trial check list
- The trial; or
- The trial period
Any date set by the court for doing any act may not be varied by the parties if the variation would make it necessary to vary dates mentioned above.
Where will the case management of a claim take place?
Case management of a claim proceeding at the High Court will be undertaken there. Any other claim at MULTI-TRACK = undertaken at Civil Trial Centre
When the court fixes a hearing to give directions, it must give
give 3 days notice
(7 days notice in pre-trial reviews).
At a case management conference, the court will:
- Review steps parties have taken in preparation;
- Give directions
- Ensure that agreements can be reached.
Where a person who attended the case management conference is inadequate, the court will make a wasted costs order.
Topics the court will consider at a case management conference include:
- Whether claimant made clear the claim they are brining
- Whether amendments required
- Disclosure od documents
- Expert evidence
- Factual evidence needs to be disclosed
- Arrangements for clarification
- Whether it is just and will save costs to order a split trial.
At this stage, the court will NOT give permission to use expert evidence UNLESS it can identify each expert by name or field and say whether his evidence will be given orally or by use of report.
At the case management conference, will the court give permission to use expert evidence?
NO
UNLESS:
UNLESS it can identify each expert by name or field and say whether his evidence will be given orally or by use of report.
Variation of directions
Any party who fails to make application to appeal or vary directions within [timelimit] and what happens?
Any party who fails to make application to appeal or vary directions within 14 days of service of order containing directions will be held to be content with it.
Variation of directions
A party should appeal if
if the direction was given, or order made at which he was present or had notice of. Exception = where there has been a change in circumstances since order made, the court may set aside or vary direction.
Variation of directions
If application is made for court to reconsider its decision:
- Usually heard by judge who gave directions or judge at same level
- Court will give 3 days notice
- Court may confirm directions or make different order
Where parties agree about changes, in some cases written agreement is not required.
Date for filing the completed pre-trial check list will be no later than
8 weeks before trial date.
When will the court serve the pre-trial check lists on parties?
Date for filing the completed pre-trial check list will be no later than 8 weeks before trial date. The court will serve the pre-trial check lists on parties 14 days before that date.
Must the parties exhcange copies of checklists before filed?
The rules do not require parties to exchange copies of check list before filed, but encouraged to do so.
When no party files a pre-trial check list, the court will
order that unless filled in 7 days from service, it will be struck out.
Where one party files checklist but the other does not, the court will
fix a hearing. Here the court normally fixes trial date and makes other orders. The court must give at least 3 days notice for this hearing.
Where court decides to hold pre-trial review, the court will [timelimit]
give parties at least 7 days notice of that date.
Failure to comply with case management direction
The party entitled to apply for such order must
do so without delay and should first warn the other side of his intention.
Postponement of trial is the last resort, it will not do so without very good reason. Failure to comply with direction is not a good reason.
Directions the court will give on listing
The court MUST:
- fix the trial date,
- Give a time estimate; and
- Fix the place of trial.
Agreed directions should include:
- Expert evidence
- Trial timetable and time estimate
- Preparation of trial bundle
- Any other matter.
Can an attachment of earnings order be made against a self-employed barrister?
NO - becaus ethey are self-employed
CONDITIONS
Court MAY make order for security for costs if:
- It is just; and
- Conditions satisfied –
- C is –
- Resident outside the jurisdiction; but
- Not resident in Brussels Contracting State
- C is –
- C is a company + reason to believe it will be unable to pay D’s costs;
- C has changed address since claim commenced to evade consequences of litigation
- C failed to give address in CF, or gave incorrect address
- C acting as a nominal C; and;
- C taken steps in relation to assets making it difficult to enforce a costs order against him.
Basic track allocation rules
Small claims track:
Fast track
Multi track
- Small claims track: value not more than £10,000
- Fast track: value over £10,000 to not more than £25,000
- Multi-track: value over £25,000
The court will disregard (r. 26.8(2)):
(a) any amount not in dispute
(b) interest
(c) costs
(d) contributory negligence
When will a provisional allocation be given?
Defended claims = Where D files + serves a Defence. After this, there is PROVISIONAL ALLOCATIO
What is provisional allocation?
Where 2 or more Ds -) when either last of them files its Defence or when period for filing last Defence = expired.
Court officer NOT judge provisionally allocated defended claims to case management tracks (based mainly on value of claim). Court sends parties notion of provisional allocation.
What is the situation with PI claims + landlord & tenant disrepair cases?
Low value PI and L&T claims will be allocated to the fast track rather than the small claims track if:
(a) It is a PI claim with damages for PSLA over £1,000
(b) It is a Landlord& Tenant claim with cost of repairs or damages over £1,000
Detailed factors in track allocation
- Financial value of claim
- Value of counterclaim, Part 20;
- Nature of remedy sought
- Importance of claim to non-parties;
- Complexity of facts, law or evidence;
- Number of parties
- Amount of oral evidence required at trial
- Views expressed by parties
- Circumstances of parties
Who provisionally allocates a case to a track?
Provisional track allocation = by court official.
Who officially allocates a claim to a track?
Actual track allocation REQUIRES court order. Judge makes:
- Track allocation decision
- Directions simultaneously with track allocation; or
- Lists case for case management conference
What is a case management hearing?
- Case management conference (CMC);
- Costs management conference
- Listing hearings
- Pre-trial reviews
Hearings before procedural judge.
How do you know when you need to file a directions questionnaire?
Notice of provisional allocation WILL specify date for filing direction Q.
In small
Fast
Multi
claims
when do you need to file the directions questionnaire?
SMALL CLAIMS = 14 DYS after service
FAST + MULTI TRACKS = 28 DYS.
What happens if you done file the directions questionnaire on time?
- CC money claims
- Court sends notice warning compliance required in further 7 days.
- Further non-compliance = AUTOMATIC struck out.
- HC money claims for specified amount
- Court will make such order incl-
- Order for directions;
- Order striking out claim
- Order striking out defence and entering judgment
- Listing a case management conference
- Court will make such order incl-
- Other claim
- No prescribed sanction (can make case management conference
If there is a failure in the HC money claims for a specified amount, and failure to file directions questionnaire on time,
a claim only falls into this category if:
- the proceedings are in the High Court;
- the claim is for a specified amount of money;
- the claim was not commenced in D’s home court;
- the claim has not been transferred to another defendant’s home court;
- the defendant is an individual; and
- the claim is not in a specialist list.
The 3rd category, “other claims”, covers almost all High Court claims whether for money or not, as well as County Court non-money claims.
MULTI TRACK: Docs required BEFORE CMC:
MUST file + serve
- Draft proposed directions using standard forms found on Ministry of Justice website;
- Costs budgets
- Budget Discussion reports
- Disclosure reports; and
- Estimated cost of any expert evidence
Multi-track claims typically subject to:
- Costs management; and
- Menu option disclosure
MAY prepare case management bundle
WHO ATTENDS CMC?:
Representative familiar with case + with sufficient authority to deal with any issues likely to arise.
If an inadequate lawyer attends = court norm makes wasted costs order.
Directions in MULTI-TRACK CASES
When it allocates case to MULTI-TRACK, court:
What WILL the court do
What MAY the court do:
WILL = give directions for management + set timetable for steps to be taken; or
MAY = fix:
- Case management conference; or
- Pre-trial review; or
- Both
And any other directions it sees fit.
When will the court consider to hold a case management conference?
On allocation to multi-track, court will consider if desirable or necessary to hold a case management conference straight away or give directions on own initiative. Court may fix CMC or pre-trial review at any time after claim allocated.
When court fixes:
Hearing to give directions = parties 3 days’ notice of hearing
Pre-trial review = 7 days’ notice
Both parties + court MUST when drafting case management directions in MULTI + FAST track, take as starting point -)
relevant standard directions.
Directions in FAST TRACK CASES
When allocate to FAST TRACK = Court will gives directions for management. Directions may be given with/without hearing. Directions impose 30 week timetable to trial including:
- Standard disclosure
- Service W/S
- Expert evidence
- Giving permission
- Directing SJE, unless good reason not to do so;
- Using expert’s written report;
- Limiting oral expert evidence to one expert each
- Limiting amount of fees recoverable
FAST TRACK CASES:
- Party MUST apply to court if he wishes to vary date court fixed for:
- Party MUST apply to court if he wishes to vary date court fixed for:
- Return of pre-trial check list;
- The trial;
- The trial period
CASE MANAGEMENT CONFERENCES
Parties MUST endeavour to agree directions for management and
[TIMELIMIT]
submit agreed directions 7 days before case management conference.
Parties MUST endeavour to agree directions for management and submit agreed directions 7 days before case management conference.
To obtain court’s approval, agreed directions must:
- Set out timetable for steps to be taken;
- Include date/period when proposed trial takes place
- Include provision about disclosure of documents
- Include provision about factual and expert evidence
Where court approved agreed directions or issues own directions, CMC is vacated. Where not vacated, a CMC includes:
- Ensuring identification of real issues;
- Identifying documents/evidence/experts
- Viewing costs budgets (MUST be provided 7 DAYS before CMC)
- Recording reasonable agreements
- Laying down directions
Where there is legal rep he must:
- Attend CMC;
- Be familiar with case;
- Have sufficient ability; and
- Have authority to agree outcomes on client’s behalf.
If not = wasted costs order.
Variation of directions
MAY appeal or apply for court to reconsider.
MUST be done ASAP. If not within 14 days = court assumes parties content.
What are the options?
-
Material change in circumstances
- MAY set aside/vary directions. On own motion or on application
-
Appeal
- Where party was present @ hearing OR reasonable notice of it;
-
Application
- If not
Can there be a variation of directions by written agreement?
Where parties agree, if CPR allows variation by written agreement – written agreement need not be filed @ court. If not, parties MUST apply for order by consent:
- MUST file draft of order sought + agreed statement of reasons why sought;
- Court MAY make order without hearing, but may direct hearing to be listed.
Court will give 3 days notice of hearing+ court may confirm directions/make different order.
FAILURE TO COMPLY:
Party may apply for an order that he complies or sanction, but MUST first warn party of intention. Court may take delay into account.
- Court wont allow failure with directions to lead to postponement unless EXCEPTIONAL circumstances.
- Where court MUST postpone trial, it will do so for shortest possible time + give directions. Postponement = last resort. They wont postpone unless very good reason – failure to comply on time with directions = not good reason.
PRE-TRIAL REVIEW If on receipt of pre-trial checklists, court holds pre-trial review/cancels it, it will serve notice at least
7 days before date fixed for (cancelled) hearing.
At a pre-trail review,
Where party has legal representative, he MUST:
- Attend pre-trial review
- Be familiar with case
- Have sufficient ability; and
- Have authority to agree outcomes on client’s behalf.
When wil the court set a timetable, confirm date of trial and notify parties, fix place of trial and give Time estimate?`
After:
- Each party files completed pre-trial check list
- Court held listing hearing; or
- Court held pre-trial review
After:
- Each party files completed pre-trial check list
- Court held listing hearing; or
- Court held pre-trial review
What happens?
Court will unless timetable fixed, set a timetable, confirm date of trial and notify parties, fix place of trial, give time estimate.
Unless the trial can proceed without a pre-trial check list, the court will send it _______ [HOW MANY DAYS]
14 days
When is the latest time a pre-trial check list MUST be returned?
specified @ track allocation stage + not later than 8 weeks before trial date.
Parties encouraged to exchange copies of check lists by date specified by court. FAILURE:
- If no one files = court norm orders unless filed within 7 days from service of order, claim, defence, counterclaim will be struck out without further order. Or
- Court may give directions where:
- Party files completed pre-trial checklist but another doesn’t. Court will norm fix hearing 3 days notice.
- Party failed to give all info requested by pre-trial checklist; or
- Court considers it necessary
What happens where a party breaks a rule that has no prescribe sanction?
Where party broken rule that has no prescribed sanction. Court can impose A sanction. Striking out = unduly harsh unless defaulting party warned in advance.
Where CPR/PD imposes specific sanction =
What happens?
sanction automatically takes effect + presumed proportionate.
A party breaches an “unless order” =
what sanction?
automatically takes effect + deemed proportionate
What happens where there is No express sanction in CPR or unless order, but defaulting party fails to take step (e.g. default judgment/failing to appeal) =
= implied sanctions doctrine applies.
Where party cannot comply in time, but issues an app to extend time BEFORE DEADLINE =
the court considers:
all circumstances.
LITIGANTS IN PERSON
When court exercises case management, it MUST
have regard to fact one party is unrepresented.
. Both parties MUST when drafting case management directions in FAST+ MULTI track, take as starting point:
any relevant standard directions + can adapt them.
Do time limits + requirements apply to litigants in person?
yes
Do Costs budget requirements apply to litigants in person?
No
Breach of directions
Where party fails with direction may apply for order he must:
BUT MUST first warn other party.
Court MAY strike out SoC if failure to comply with rule/PD or court order.
What are alternative sanctions?
(a) Striking out entire claim or defence;
(b) Striking out part of the claim or defence;
(c) Debarring from calling witnesses;
(d) Increasing the rate of interest (if the default comprises non-compliance with a Pre-action Protocol) to up to 10% above base rate;
(e) Paying all or some of the other party’s costs of the proceedings;
(f) Paying the costs of and occasioned by the application in which the default is considered;
(g) Costs on the indemnity basis.
Total disregard of court orders amounting to an abuse of process: immediate striking out
UNLESS ORDERS
Failure to comply =
Court MAY make unless order. They MUST specify exact deadline for compliance + precise sanction for non-compliance.
Has AUTOMATIC EFFECT. Where unless order includes term SoC will be struck out if party failed:
- Where whole SoC struck out + remedies are money or delivery of goods, innocent party may obtain judgment with costs by filing a request.
- Where equitable relief sought (or partial strike out), innocent party may apply for judgment.
Any argument sanction should have been imposed – MUST be taken on appeal.
Irregularities
Where error of procedure
= it doesn’t invalidate any step UNLESS court orders.
E.g.
- Serving PoC by email = failure of procedure, but service NOT invalid. But can enter default judgment.
- Costs budget signed not by X = irregularity NOT breach so relief from sanctions not engaged.
Apps to vary or revoke
Court can vary/revoke order, but norm where:
- Material change of circumstances;
- Facts which original order made was misstated;
- Where manifest mistake in formulating order
(1)Is same test for applying second interim payment
IMPLIED SANCTIONS doctrine
IS applies to:
- Setting aside default judgments; and
- Apps to appeal out of time (or file respondent’s notice out of time)
IS = diff from relief from sanctions.
IMPLIED SANCTIONS doctrine
Extending Time BEFORE breach
WHAT DOES THIS MEAN?
Court MAY extend/shorten time for compliance with rule, PD, or court order.
Court norm grants time, unless PREJUDICE**. Q = whether request for time = **REASONABLE + will imperil hearing date.
App is on-time if app notice issued before time expired.
IMPLIED SANCTIONS doctrine
Can you consent to extend time?
CANNOT get party consent to extend/vary key dates. On fast track these are:
- Return of pre-trial checklists
- Trial date or trial period
Norm parties cannot extend time for complying with “unless” order, EXCEPT: an extension can be agreed up to 28 days provided extension doesn’t put at risk any hearing date. Agreed extension must be:
- In writing
- Before original deadline expires
- No more than 28 days
- Not put hearing date at risk
Court may prevent parties consenting to extend time.
