13. Case Management, Sanctions, Striking Out and Discontinuance

Question 1

Which claims is the small claims track the normal track for?

Answer 1

1. General rule: the value of the claim is not more than £10,000
2. Personal Injury: for all claims that have a PI component (i.e. can also have non-PI elements), the total must not exceed £10,000 and any damages claimed arising from road traffic accidents must not exceed £5,000 and damages for other PI claims must not exceed £1,500.
3. Claims by residential tenants against landlord: this rule only applies if the tenant is seeking an order requiring the landlord to carry out repairs or other work -> the cost of the repairs sought must not exceed £1,000 and the value of any other claim for damages in the proceedings must not exceed £1,000.

Question 2

Which claims is the fast track the normal track for?

Answer 2

1. Small claims track is not the normal track
2. Since April 2009 -> value must be not more than £25,000
3. The trial must not be expected to last for more than 1 day
4. Max 1 expert per party per expert field and a maximum of 2 expert fields

Question 3

Which claims is the multi-track the normal track for?

Answer 3

All claims that don’t belong on the small claims or fast track

Question 4

When will the court allocate the claim to a track?

Answer 4

• When all parties have filed their directions questionnaire (n.b. there are circumstances in which the court can make directions where a party has failed to file a directions questionnaire. In these cases, the court allocates when giving directions).
• If the claim was stayed before it was allocated, it will be allocated at the end of the period of stay.
• If the claim was referred to the Mediation Service and the court has not been notified in writing that a settlement has been agreed, then the claim will be allocated no later than 4 weeks after the last directions questionnaire was filed.

Question 5

Can the court hold a hearing for allocation purposes?

Answer 5

Yes - if it thinks that this is necessary

Question 6

How will the court determine whether it should allocate the claim to its normal track?

Answer 6

Will have regard to the following matters:

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 to persons who are not parties to the proceedings
8. the views expressed by the parties and
9. the circumstances of the parties

Question 7

How will the court allocate a claim that has no financial value?

Answer 7

Also have regard to the list of factors relevant to allocation: i.e.

1. the nature of the remedy sought
2. the likely complexity of the facts, law or evidence
3. the number of parties or likely parties
4. the value of any counterclaim or other Part 20 claim and the complexity of matters relating to it
5. the amount of oral evidence which may be required
6. the importance of the claim to persons who are not parties to the proceedings
7. the views expressed by the parties (i.e. which track they want - this is an important factor but ultimately the decision is for the court); and
8. the circumstances of the parties

Question 8

Can a claim by a residential tenant for repair be allocated to the small claims track if it includes a claim for harassment or unlawful eviction?

Answer 8

No

Question 9

Who determines the financial value of the claim and what do they take into account for this purpose?

Answer 9

• Although the claimant has to provide a statement of value in the CF, ultimately the determination of the claim’s financial value is for the court.
• The court will disregard: (a) any amount not in dispute, (b) any claim for interest, (c) costs; and (d) any contributory negligence

Question 10

What can the court do if it believes that the claimant has overstated the amount in their financial statement in the CF?

Answer 10

Make an order requiring the claimant to justify the amount sought

Question 11

Which amounts are ‘in dispute’ and why does this matter?

Answer 11

• Matters because only amounts that aren’t in dispute go to the quantum of the claim
• Amounts in dispute: Any amount for which D does not admit liability (obvs this is not exhaustive, but it’s one of the points made in the PD)
• Amounts NOT in dispute:

1. Any item in the claim for which judgment has been entered (e.g. summary judgment)
2. Any sum in respect of which D admits liability
3. Any sum offered by D and accepted by C in satisfaction of any item which forms a distinct part of the claim

Question 12

How will the court determine the value of the claim if the case involves more than one claim/counterclaim?

Answer 12

The claims are NOT generally aggregated. Instead, the largest individual claim is determinative of the value for allocation purposes.

Question 13

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 13

No

Question 14

If a claim form contains claims by two or more claimants against the same defendant is the value of the claims assessed together or separately?

Answer 14

If the claims are genuinely distinct, the value is assessed separately. - see r 26.8(3) if confused

Question 15

Is the court’s allocation final?

Answer 15

No - the court can subsequently reallocate to a different track (e.g. if there has been a change in circumstances). It can do this on an application from a party or on its own initiative.

Question 16

If the court is allocating a claim for which the normal track is the fast track, but it could also allocate it to the multi-track, how will it make up its mind? Obviously the question whether it should send it to the small claims track does not arise because it won’t meet those requirements

Answer 16

• It will allocate it to the fast track, unless it believes that the case cannot be dealt with justly on the fast track
• Matters that it will consider: likely limits placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day (day = 5h), likely case management directions and the court’s powers to control evidence and to limit cross-examination.
• The possibility that a trial might last longer than a day does not necessarily mean that it should be (re)allocated to the multi-track
• Split trial can take place on the fast track.
• BUT if there is an additional claim or a counterclaim that has the effect that the trial will last longer than a day, then the case MAY NOT be allocated to the fast track.

Question 17

When does the court give case management directions in a case allocated to the fast track?

Answer 17

• When allocating or listing it or both (or at any other time)
• The trial judge can also give directions for the conduct of the trial at or before the trial

Question 18

What can you do if you are dissatisfied with the allocation of the claim?

Answer 18

• Appeal the decision or apply to the court to re-allocate.
• Appeal -> appropriate if the order was made at a hearing at which he was present or represented or of which he was given due notice
• Apply -> appropriate in all other cases

Question 19

How are time periods calculated for the purposes of the CPR?

Answer 19

• In clear days: i.e. the day that the time period begins and the day on which the event takes place that brings the period to an end are not included (obviously if you’re given an end date you don’t run into computational issues anyway).
• If the specified period is 5 days or less it does not include weekends, bank holiday, Christmas Day or Good Friday (but if it is longer then it does generally include these days)
• If the period expires on a day on which the court office is closed (and you had to the relevant thing at the court office), then you are taken as doing it in time if you do it on the next day on which the court office is open

Question 20

Who can vary time limits imposed by the CPR

Answer 20

The court has a general power to extend or shorten time limits (r. 3.1(2)(a)). BUT the parties can also vary time limits by written agreement. Some time limits cannot be varied by them. These are:

1. r. 3.8: sanctions that have effect unless defaulting party obtains relief (this also means that if the court has imposed time limits subject to a sanction in default the parties can’t agree to vary it) - but n.b. this is misleading. The CPR does say that parties can’t vary these time limits, unless (and the unless is really crucial because it’s so wide) the parties agree to an extension in writing before expiry of the time limit for up to a maximum of 28 days and the extension does not put a trial date at risk
2. r. 28.4; variation of case management timetable - fast track
3. r. 29.5: variation of case management timetable - multi-track
4. r. 26.3: time period for complying with notice of proposed allocation

Sometimes the CPR expressly provides for variation and presumably these express provisions override the general power of the parties to agree on different time limits. E.g. r 15.5 that allows parties to extend the time for filing a defence by up to 28 days but no more.

Question 21

What are the court’s general powers of case management?

Answer 21

the court may-

1. extend or shorten the time for compliance with any rule, PD or court order (even if time has already expired)
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. direct that part of any proceedings (such as counterclaims) be dealt with as separate proceedings
7. stay the whole or part of any proceedings or judgment either generally or until a specified date or event
8. consolidate proceedings
9. try two or more claims on the same occasion
10. Direct a separate trial of any issue
11. decide the order in which issues are to be tried
12. exclude an issue from consideration
13. dismiss or give judgment on a claim after a decision on a preliminary issue
14. order any party to file and exchange a costs budget
15. take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an ENE with the aim of helping the parties to settle the case

Question 22

Can the court make an order that is subject to conditions?

Answer 22

Yes, including conditions to pay a sum of money into court. When it does so, the court can also specify the consequences of non-compliance with its order.

Question 23

What time limits cannot be varied by written agreement of the parties?

Answer 23

(1) sanctions have effect unless defaulting party obtains relief - unless the parties agree in writing before the time limit has expired to an extension of not more than 28 days and the extension does not put any hearing date at risk
(2) variation of case management timetable (fast tack)
(3) variation of case management timetable (multi-track)

Question 24

What can the court do if a party has failed without good reason to comply with a rule, PD or a relevant pre-action protocol? Which factors must the court have regard to in exercising this power?

Answer 24

• What: It can order that party to pay a sum of money which will be security for any sum payable by that party to any other party in the proceedings.
• Factors to consider: (a) the amount in dispute, (b) the costs which the parties have incurred or which they may incur

Question 25

Can the court vary or revoke its own orders?

Answer 25

Yes

Question 26

What can the court do to monitor compliance?

Answer 26

Contact the parties. The parties must respond promptly to such enquiries.

Question 27

What must the court do when there is an unrepresented party in the proceedings?

Answer 27

1. have regard to the fact that at least one party is unrepresented and do its best to further the overriding objective
2. If evidence is taken at a hearing - ascertain from the unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined and put or cause to be put to the witness such questions as may appear to the court to be proper

Question 28

Can the court exercise its case management power on its own initiative?

Answer 28

Yes

Question 29

Can the court give the parties an opportunity to make representations in respect of an order that it is proposing to make of its own initiative?

Answer 29

• Yes - if it proposes to hold a hearing it MUST give each party likely to be affected by the order at least 3 days’ notice of the hearing
• But n.b. it does not have to give the parties an opportunity to make representations

Question 30

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

Answer 30

at least 3 days’ notice

Question 31

What can you do if the court has made an order without giving the parties an opportunity to make representations? What is the time limit for doing this?

Answer 31

• Apply to the court to have it set aside, varied or stayed (any party affected by the order can do this).
• Time limit = 7 days from the date on which the order was served on the party making the application or such time as the court has directed in the order

Question 32

What must the court do if it strikes out a statement of case or dismisses an application of its own motion (including an application for permission to appeal/JR) and it considers the claim or application to be totally without merit?

Answer 32

1. Record that fact; and
2. consider whether it is appropriate to make a civil restraint order.

Question 33

What can you do if the court has made an order against another party which stated that in case of non-compliance the other party’s case would be struck out and the other party has not complied?

Answer 33

• You can obtain judgment with costs
• You can do this by filing a request if the remedy sought is the payment of money or delivery of goods with the alternative of a money payment
• In all other cases you have to put in a Pt 23 application
• N.B. this option is only available if the defaulting party’s entire case was struck out
• Defendants and claimants can get judgment under this rule (although obviously only claimants will get a remedy)

Basically these are just the strike out/default judgment rules, but applied to a scenario where the strike out itself happens automatically. So the point to remember is that when you try to get a statement of case struck out or a dj you can do this by request in straight-forward monetary cases, but you need to file an application in cases where you want a different lind of remedy.

Question 34

What happens if there has been an error of procedure?

Answer 34

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 35

Which claims do the costs management rules apply to?

Answer 35

All Part 7 multi-track cases, except:

• Any that are for more than (or stated to be for more than) £10 million
• Claims made by or on behalf of a child
• Any cases to which fixed costs or scale costs apply
• Where the court orders otherwise

Question 36

Outline the basic steps prescribed by the costs management rules.

Answer 36

1. File and exchange budgets and budget discussion reports prior to the first case management conference (‘CMC’). The discussion reports indicate which costs in the budgets are agreed and which are not agreed (and if not agreed, why): i.e. this seems to be a joint document of the parties.
2. Usually the court will make a costs management order (‘CMO’) at the first CMC. This will do two things: (i) record the extent of the parties’ agreement in respect of costs already incurred and to be incurred; (ii) record the quantum of future costs approved by the court (i.e. moving forward, how much are they allowed to spend?).
3. After the CMC, the costs will be controlled by the court and the court will not make any orders without considering the costs implications. The parties must - from this point onwards - actively reconsider their budgets and, if necessary, seek a revision by agreement or from the court (upwards or downwards). Any revised budgets must be re-filed and re-served.
4. At the end of the proceedings, the recoverable costs will be assessed in accordance with the last agreed or approved budget (although the court may have regard to all agreed and approved budgets).

Question 37

Who is exempt from filing and exchanging costs budgets and budget discussion reports?

Answer 37

Litigants in person (but they have to be given copies of the represented parties’ budgets)

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
2. in any other case, not later than 21 days before the first case management conference.

Question 39

When do budget discussion reports have to be filed?

Answer 39

No later than 7 days before the first case management conference

Question 40

Can the court order the costs management rules to apply to cases to which they don’t normally apply? What must the court do if all the parties agree that these rules should apply?

Answer 40

Yes - can do this generally and can also order some of the steps to apply (e.g. file and exchanging budgets + filing discussion reports). If all the parties agree that this should happen the court MUST order the parties to take these steps.

Question 41

Can the budgeting happen incrementally?

Answer 41

Yes - in ‘substantial’ cases the court can order that in the first instance a budget is to be filed for part only of the proceedings and extended later to cover the whole proceedings

Question 42

What is the consequence of failing to file a budget?

Answer 42

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

Question 43

When can the court make a costs management order? In what circumstances is the court justified in not making a costs management order?

Answer 43

It can always do so. It must (in the CPR it says ‘it will’) make such an order where budgets have been filed and exchanged, unless it is satisfied that the litigation can be conducted justly and at proportionate cost without such an order being made.

Question 44

What can the court do if it has comments about incurred costs and what is the effect of the court doing his?

Answer 44

It can record any comments that it has on the face of any case management order. These comments will be taken into account in any subsequent assessment proceedings.

Question 45

How much can the parties spend on budgeting/costs management?

Answer 45

1. Initially completing the form used for costs budgets

Save in exceptional circumstances -> can’t spend more than the higher of £1,000 or 1% of total of the incurred costs and the budgeted costs

2. All other (I take this to mean any budgeting costs incurred other than the initial costs) recoverable costs of the budgeting and costs management process

Save in exceptional circumstances -> can’t spend more than 2% of the total incurred and the budgeted costs

Question 46

What degree of detail is contained in a costs management order?

Answer 46

For reference purposes it contains the calculations used to arrive at the figures (i.e. a lot of detail). But the order itself only budgets costs by phase in the proceedings and does not specify all the details of what exactly the costs are incurred for (such as hourly rates).

Question 47

When must a party revise its budgeted costs?

Answer 47

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

Question 48

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

Answer 48

1. Serve particulars of the variation proposed on every other party. These must be confined to the additional costs occasioned by the significant development. The party must also certify that the additional costs are not included in any previous budgeted costs or variation.
2. Submit the particulars promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed.

Question 49

What are the court’s powers regarding proposed variations of costs?

Answer 49

The court may approve, vary or disallow the proposed variations. It may also list a further costs management hearing.

Question 50

What is a costs management conference?

Answer 50

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

Question 51

How should costs management conferences be conducted?

Answer 51

Where practical by telephone or in writing

Question 52

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

Answer 52

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

Question 53

What kinds of costs can the court approve?

Answer 53

It can only approve future costs, not costs that have already been incurred at the time approval is sought/given (with the exception of costs incurred in seeking a variation to an approved budget). However, it can record its comments on any previously incurred costs and these comments will be taken into account when considering the reasonableness and proportionality of all budgets costs.

Question 54

What is the difference in the way in which approved or agreed budgets are taken into account in assessing costs on the standard vs the indemnity basis?

Answer 54

I got this from comparing r. 3.18 and r.44.4 - i.e. it doesn’t really say this expressly anywhere, but I think this is the combined effect of both rules

• The court will take the budgets into account in both cases (in assessing proportionality/reasonableness, as the case may be)
• However, on the standard basis the court will not depart from the last approved or agreed budget unless it considers that there is a good reason to do so - the approach on the indemnity basis seems to be more flexible (there’s no equivalent rule to this)

Question 55

What format do budgets have to be in?

Answer 55

• Precedent H, landscape, easily legible typeface
• Only use the first page of precedent H if the total costs do not exceed £25,000 or the value of the claim is less than £50,000

Question 56

How detailed is the court’s review of the budgeted costs?

Answer 56

Not concerned with detailed assessment, but instead focused on whether the budgeted costs fall within the range of reasonable and proportionate costs.

Question 57

Which event will trigger the allocation procedure (i.e. what will set that train into motion)?

Answer 57

The filing of a defence by D - cases are not allocated unless and until they are defended

Question 58

What will happen upon the filing of a defence by D?

Answer 58

A court officer will provisionally allocate the claim to a track and serve a notice of proposed allocation on the parties.

Question 59

What does the notice of proposed allocation do?

Answer 59

• It requires the parties to file a completed directions questionnaire and serve copies on all other parties. It also contains all the info you need to comply with this (address, info on how to get the questionnaire, date for compliance, etc.). In the case of unrepresented parties the notice will also contain the directions questionnaire (so the party does not have to go find it).
• If a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.

Question 60

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

Answer 60

• Either when all of them have filed a defence or when the period for the filing for the last defence has expired (but at least one of them has filed a defence), whichever is sooner
• Remember: no allocation of undefended claims + thus also no filing of directions questionnaires
• In cases where D has said that they have already paid and the court has therefore asked C if C wishes to continue (see r. 15.10), the notice of proposed allocation will not be served until C has filed a notice requiring the proceedings to continue

Question 61

By when do parties have to file and serve the documents specified in the notice of proposed allocation?

Answer 61

By the time specified in the notice itself. This will be:

1. small claims track - at least 14 days after date of service of the notice
2. fast track/multi track - at least 28 days after date of service of the notice

This date cannot be varied by agreement of the parties

Question 62

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

Answer 62

No

Question 63

What can be requested when filing a directions questionnaire?

Answer 63

For the case to be stayed so that the parties can attempt to settle (request needs to be in writing)

Question 64

How long will the proceedings be stayed for if all the the parties agree (and they accordingly submit a written request when filing the directions questionnaire) that it should be stayed so that the parties can attempt to settle?

Answer 64

1 month

Question 65

What are the powers of the court relating to ordering a stay during case management to allow the parties to attempt to settle?

Answer 65

As we’ve already seen the court will order a 1 month stay if all the parties agree. Additionally, the court has a wide discretion to order a stay of its own motion or where not all the parties agree. The court may order the stay to be upwards of 1 month (but not less).

Question 66

What needs to happen if a settlement is reached where the proceedings have been stayed?

Answer 66

The claimant needs to inform the court of it.

Question 67

Which cases can be referred to the Mediation Service and under what circumstances will they be referred? What happens if a settlement is reached in these circumstances?

Answer 67

• Which claims: Any claims started in the CC that would be allocated to the small claims track, other than personal injury, road traffic accident and housing disrepair claims.
• Referred if all parties indicate in the directions questionnaire that they agree to mediation
• If claim is settled -> proceedings automatically stayed with permission to apply for the enforcement of the judgment or for the claim to be restored for hearing the full amount claimed

Question 68

When a court gives directions in a fast track claim following allocation, which matters might it deal with in these directions?

Answer 68

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

N.B. this is obviously not an exhaustive list

Question 69

In a fast track case, what can the court do if it decides not to direct standard disclosure?

Answer 69

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

Question 70

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

Answer 70

Only by applying to the court (i.e. ‘no’ - cannot be varied by agreement). The parties also cannot agree any other variations to time limits if these would necessitate varying the case management timetable.

Question 71

What is the next thing that happens after a case has been allocated to the multi-track?

Answer 71

• The court will either

1. Give case management directions and set a timetable leading up to trial; or
2. Fix a case management conference/pre-trial review; or
3. both

• It will also fix the trial date asap and tell the parties when they have to submit the pre-trial check list.
• This is different to the fast track where the court does not (at least by the express words of Pt 28) have the option of fixing a CMC or pre-trial review. Although query whether it could do so by virtue of its general case management powers in Pt 3. But presumably if the court thinks that a con is necessary it should just allocate the claim to the multi-track.

Question 72

Can the court only fix a CMC or a pre-trial review when it is allocating?

Answer 72

No - it can do this at any time after the claim has been allocated

Question 73

Who must attend the CMC/pre-trial review?

Answer 73

• The legal reps of each party that has a legal rep.
• This person must be competent to attend (is familiar with case and has authority to make relevant decisions).
• If they are not competent and their inadequacy leads to an adjournment the court will expect to make a wasted costs order.

Question 74

What must the parties do leading up to the CMC?

Answer 74

Try to agree directions. They must submit these (or their respective proposals if they were unable to agree) to the court at least 7 days before the CMC.

Question 75

What happens if the court approves agreed directions or issues its own directions before the CMC?

Answer 75

The CMC will be vacated and the parties will be notified.

Question 76

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

Answer 76

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 77

Can the parties vary the case management timetable on the multi-track?

Answer 77

Only by applying to the court (i.e. ‘no’ - cannot be varied by agreement). The parties also cannot agree any other variations to time limits if these would necessitate varying the case management timetable. The time limits that cannot be varied are:

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

Question 78

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

Answer 78

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 79

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

Answer 79

On the date specified by the court

Question 80

What happens if no party files a completed pre-trial checklist?

Answer 80

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

Question 81

What happens if not all parties file a completed pre-trial checklist, the checklists are incomplete/there’s some sort of defect or the court considers that it needs more info to give directions?

Answer 81

Can give such directions as it thinks appropriate

Question 82

If the court decides to either schedule or cancel a pre-trial review upon the receipt of the pre-trial check lists, how much notice will the parties get of this decision?

Answer 82

At least 7 days before the date fixed for the hearing

Question 83

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

Answer 83

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 84

Where will case management of cases on the multi-track usually take place?

Answer 84

The Civil Trial Centre unless the case is proceeding in the RCJ, in that case the RCJ will do the case management.

Question 85

What are the hallmarks of the multi-track?

Answer 85

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

Question 86

What will the court usually do if it becomes necessary to fix a hearing during the case management phase of the multi-track because of the default of one of the parties?

Answer 86

Impose a sanction

Question 87

How many days’ notice will the court give of hearings in the case management phase on the multi-track other than pre-trial reviews?

Answer 87

3 days

Question 88

Which level of judge will normally deal with case management?

Answer 88

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 89

What do agreed directions need to state to obtain the court’s approval?

Answer 89

1. set out a timetable leading up to trial by reference to calendar dates
2. include a date or a period for the trial
3. include provision about disclosure of documents
4. include provision about both factual and expert evidence

Question 90

What is one of the things that parties may consider providing to the court for the purposes of the CMC in a multi-track case?

Answer 90

A case summary - i.e. a document setting out a brief chronology of the claim and issues. If this is thought helpful it should be provided by the claimant and should not exceed 500 words.

Question 91

What can you do if you are dissatisfied with a case management decision in a multi-track case?

Answer 91

• Appeal it or apply for it to be varied
• As with allocation, you should appeal if you were present at the hearing at which the order was made or had due notice of it. In all other cases you should apply for a variation.
• The court will assume that you are content with the decision if you have not applied to have it varied within 14 days of service of the order. (I always forget this)

Question 92

Which judge will hear an application to vary a case management decision?

Answer 92

The same judge or a judge of the same level

Question 93

How many days’ notice will the court give of a hearing of an application to vary a case management decision?

Answer 93

At least 3

Question 94

What can you do if another party has failed to comply with a case management direction?

Answer 94

• Apply to the court for an order that the party must comply or (in case of default) incur a sanction.
• Before applying to the court you should get in touch with the other party first. But you should also seek the order without delay. The court may take any delay into account in determining whether it ought to impose a sanction/grant relief from a sanction.

Question 95

How important is it to stick to the set trial date?

Answer 95

It’s probably the single most important consideration. The court will do whatever it can to stick to it. E.g.

• If some issues, but not all, are ready it may hold the trial for only those that are
• If it does postpone it will do so for the shortest amount of time possible

The CPR describes postponement as a measure of ‘last resort’. It is also very important to stick to the dates set for other hearings (but not quite as essential as for the trial).

Question 96

What is the latest date that the court will set for completion of the pre-trial check list?

Answer 96

8 weeks before the trial

Question 97

What is the latest date that the court will serve the pre-trial check list?

Answer 97

14 days before it is due

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. The point here is simply that adverse costs orders are - at least on one view - a sanction. But it’s not a sanction that you can obtain relief from by making an application under s. 3.9.

Question 99

Can parties agree to extend the time for compliance with a court order backed by sanction in case of default?

Answer 99

Yes, but only 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

How can you obtain relief from sanctions?

Answer 100

By making an application (under r. 3.9 - no need to memorise this)

Question 101

What are the two factors specifically mentioned in the rule providing for relief from sanctions to which the court must have regard? Are these the only factors that the court will consider?

Answer 101

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

Will consider all the factors

Question 102

Which case gives the guidance for when the court will grant relief from sanctions?

Answer 102

Denton

Question 103

What guidance can we get from Denton?

Answer 103

In determining whether the court should grant relief from a sanction, it should apply a three-stage test:

1. Consider the seriousness and significance of the breach

• If the breach is not sufficiently serious, the court will probably not have to consider (2) and (3) in much detail or at all -> relief will usually be granted
• Often the most useful yardstick is to consider whether the breach imperilled the hearing date
• But some breaches are sufficiently serious even if they don’t have this effect: e.g. failure to pay court fees
• At this stage the focus should be on the specific breach, rather than the applicants conduct in the litigation in general. But obviously where the breach is that of an ‘unless order’ it is important to look at the underlying order to assess seriousness.
• Where applications for relief from sanctions are made in respect of two separate sanctions the court should consider each breach separately at the first stage but should consider both of them together at the third stage.

2. Why did the default occur?

• No examples given in Denton, but from other cases: (i) the party’s solicitor was seriously ill or involved in an accident; (ii) later development of litigation means that the original time limit for compliance became unreasonable (but was reasonable when made and so could not be altered by way of application/appeal at the time); (iii) failure to deliver a document caused by difficulties in getting the signature of a third party; (iv) key witness was pre-occupied with visiting very ill wife in hospital; (v) failure to issue new claim form on time because although it was given to the court in good time, the court failed to issue it for 9 days.
• In general, a good reason will be outside the control of the defaulting party
• If there is a good reason, the court will usually grant relief from the sanction

3. evaluate all the circumstances of the case

• It is WRONG to assume that just because there is a serious and significant breach for which there is no good reason the relief applied for will be denied. The court still has to consider ALL the circumstances and there are cases where relief is granted at the third stage.
• Obviously you have to consider the factors expressly mentioned in r. 3.9 ((a) need to conduct litigation efficiently and at proportionate cost, (b) enforce compliance with orders, rules and IDs).
• Very important to consider the promptness of the application for relief - in many cases this has been determinative
• Other factors mentioned in case law: the track record of compliance of the defaulting party, other past and current breaches.

The court also gave guidance on the conduct it expected of other parties to the litigation:

• It is wholly inappropriate for a party to seek to obtain an advantage from the other party’s breach by unreasonably opposing the application for relief from sanctions
• The parties should be willing to agree a reasonable extension (up to 28 days) where it is clear that - applying Denton - the court would grant relief from the sanction
• If you unreasonably oppose the application for relief or refuse to agree to an extension then you will be subjected to heavy costs penalties
• Failure to act reasonably means that you are not fulfilling your obligation to assist the court in furthering the overriding objective

Question 104

Do the Denton principles apply to applications to set aside default judgments and to applications striking out claims for failure to attend the trial?

Answer 104

On balance, it seems that they do. However, there is some obiter authority to suggest that they might not. In any event, the Denton principles only apply once any mandatory requirements (e.g. in r. 39.3) have been considered first. If applying the mandatory requirements leads to a conclusion, then Denton will not be considered.

Question 105

In what circumstances can a court strike out a statement of case or part of a statement of case?

Answer 105

if it appears to the court that-

1. the statement of case discloses no reasonable grounds for bringing or defending the claim
2. 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
3. that there has been a failure to comply with a rule, PD or court order (even where the rule etc itself did not expressly say that this was a possibility)

N.B. this power is in addition to any other powers that the court may have to strike out - i.e. these three circumstances do not impose limits

Question 106

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, the claimant starts another claim arising out of the same or substantially the same facts?

Answer 106

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

Question 107

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

Answer 107

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

Question 108

What does D not have to do if they apply to strike out all or part of C’s claim form?

Answer 108

No need to file a defence before the strike out hearing (obviously default judgment against D is not available in these circumstances)

Question 109

At what stage in the proceedings can an order for strike out be made?

Answer 109

Usually made during the pre-trial stages of proceedings, but is available in theory at any point until judgment has been given.

Question 110

Can a strike out application be refused without an oral hearing?

Answer 110

No (from case law)

Question 111

What is the threshold that the court should apply in determining whether a claim should be struck out because it discloses no reasonable grounds for defending the claim?

Answer 111

The court should be certain that the claim is bound to fail. Before striking out, the court should consider whether the defect might be cured by amendment.

Question 112

Does the fact that a claim amounts to an abuse of process mean that it should necessarily be struck out?

Answer 112

No - the court has a prima facie right to strike out, but whether it ought to exercise the right will depend on whether this is a proportionate response to the situation. In general, the striking out of a valid claim should be the last option. If the abuse can be addressed by a less draconian course, it should be.

Question 113

Which examples of ‘abuse of process’ are we meant to know for the purposes of striking out claims?

Answer 113

Lots of things can amount to an abuse of process. However, we’re only set a bit more reading on two examples.

1. Cases where the abuse consists of attempts to re-litigate matters (i.e. res judicata). The important thing to remember here is that this doctrine covers not just things that have actually been litigated, but also issues that could/should have been litigated in earlier proceedings. Basically, the point is that the court might find that there is an abuse of process on res judicata grounds because the claimant is dragging on the litigation unnecessarily by bringing up things that could or should have been brought up earlier. But obviously this whole area is very fact-sensitive.
2. Instances where the proceedings amount to a collateral attack on a final decision against the claimant which the claimant had the opportunity to fully defend. Prime example = negligence proceedings against lawyers who defended a claimant in criminal proceedings that ended in a guilty verdict

Question 114

If you initially claim more than one remedy and then abandon one of them, are you taken to have discontinued all or part of your claim?

Answer 114

No - abandonment of a remedy does not amount to discontinuance

Question 115

In what circumstances can a claimant discontinue a claim?

Answer 115

In principle at any time and whenever they want (i.e. C has a right to discontinue). But there are some circumstances in which this right is subject to special conditions:

1. If the court has granted an interim injunction or a party has given an undertaking in relation to the claim, C must obtain the court’s permission to discontinue.
2. If C has received an interim payment, he may discontinue only if the D who made the payment consents in writing or if the court gives permission.
3. If there is more than one claimant, all claimants must consent to the discontinuance in writing or the court must give permission.

Question 116

What is the procedure for discontinuing a claim?

Answer 116

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

The notice must:

• Where applicable, contain the consent of any party from which the claimant needs consent;
• State that the notice has been served on every other party
• Specify against which D the claim is being discontinued, if there is more than one D

Question 117

What can D do if they don’t want C to discontinue the claim?

Answer 117

Apply to have the notice of discontinuance set aside. D must apply within 28 days of service of the notice.

Question 118

When does discontinuance take effect?

Answer 118

On the date when notice of discontinuance is served.

Question 119

Who is liable for costs where the claim is discontinued?

Answer 119

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. If C only partly discontinues, then they are liable for the part which they discontinued (in cases of partial discontinuance, costs are assessed at the end of the proceedings, even for the discontinued part). N.B. this rule does not apply to small track claims

Question 120

If a claimant discontinues a claim, can they make another claim against the same defendant which is based on the same or substantially the same facts?

Answer 120

Yes -

1. You can do it without the court’s permission if you discontinued before D filed a defence (in Pt 7 claims) or an acknowledgment of service (in Pt 8 claims).
2. After D did this, you need the court’s permission

Question 121

What is the procedure for applying to bring a claim after you discontinued a claim based on the same or substantially the same facts?

Answer 121

• You attach your application for permission to the CF for the new claim
• If D agrees that permission should be granted the court will grant permission (it is also D’s job to inform the court whether they consider that permission is needed, if C has not applied for permission)
• If the parties disagree on whether permission should be granted, the court can either hold a hearing or determine the matter on the written representations
• D does not have to file an acknowledgement of service until permission is granted

Question 122

Where C has partially discontinued the claim and is now liable for the costs of the discontinued part, what additional method does the CPR provide to ensure that C in fact pays this?

Answer 122

If C does not pay the sum within 14 days of the date on which payment falls due, the court is entitled to stay the remainder of the proceedings until C has paid.