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.
