13. Case Management, Sanctions, Striking Out, and Discontinuance Flashcards
How is time calculated under the CPR?
Unless otherwise specified, a period of time expressed as a number of days shall be computed as clear days. Clear days means that in computing the number of days, the day on which the period begins and if the end is the period defined by reference to an event, the day on which that event occurs, are not included.
Unless otherwise specified, when the period specified for doing any act at the court office ends on a day on which the court offices closed, that act shall be in time under these rules if done on the next day on which the court office is open.
May the time limits be varied by parties?
Unless otherwise specified, the time specified by a rule of by the court for a person to do any act may be varied by the written agreement of the parties.
What powers of case management does the court have?
It may:
1. extend or shorten the time for compliance with any rule practise direction or court order
2. Adjourn or bring forward a hearing
3. Require that any proceedings in the High Court be hurt by a divisional court of the high court
4. Require a party or party’s legal representative to attend their court
5. Hold a hearing and receive evidenced by telephone or by using any other method of direct oral communication
6. Direct that part of any proceedings be dealt with as separate proceedings
7. Stay the whole or part of the proceedings of judgement either generally or until a specified data 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. Excluded an issue from consideration next align dismiss or give judgement on a claim after a decision on the preliminary issue
13. Or any party to file an exchange a cost budget
14. Take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including an early neutral evaluation with the aim of helping the parties settle
When the court makes such an order it may make it subject to conditions including a condition to pay a sum of money into the court and specify the consequences of failure to comply with the order or a condition.
What must the court consider when exercising its case management powers?
Whether or not a party has complied with the practise direction and any relevant pre-action protocol
Whether a party is represented or not. Furthermore the must when drafting case management directions in the multi track intermediate track and fast track, take their starting point any relevant standard directions which can be found online and adapt them as appropriate. They must also adopt such procedure at any hearing as it considers appropriate to further the overriding objective. And at any hearing where the court is taking evidence this may include ascertaining from an 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 putting or causing to be put to the witness such questions as may appear to be proper.
The court may order a party to pay a sum of money into the court if that party has, without good reason, failed to comply with the rule, practise direction or a relevant pre-action protocol.
When exercising its power to order a party to pay a sum of money, it must have regard to the amount in dispute and the costs which the parties have incurred or which they may incur
Where a party pays money into the court following an order, the money shall be security for any sum payable by that party to any other party in the proceedings
The court can also revoke or vary these orders.
The court may contact the parties from time to time in order to monitor compliance and the parties must respond promptly to any such inquiries.
Can a Court make an order on its own initiative?
Except where provided otherwise, the court may exercise its powers on an application or on its own initiative.
What is the procedure when a court wishes to make an order on its own initiative?
It may give any person likely to be affected by the order an opportunity to make representations and where it does so must specify the time and the manner in which the representations are to be made.
Where the court proposes to make an order of its own initiative and to hold a hearing to decide whether to make the order, it must give each party likely to be affected by the order at least three days notice of the hearing.
The court may make an order on its own initiative without hearing the parties or giving them an opportunity to make representations. Where a court has done so on its own initiative without representations, a party affected by the order may apply to have it set aside, varied or stayed and the order must contain a statement of the right to make such an application.
What procedure should be followed when making an application to vary a case management order made on the court’s own initiative?
It must be made within such a period as may be specified by the court or if the court does not specify a period, not more than seven days after the day on which the order was served on the party making the application.
An application shall be considered at an oral hearing unless the court decides and states in an order that the application is totally without merit. If the court decides that an application is totally without merit an application may be made for reconsideration without an oral hearing
if the court on its own initiative strikes out a statement of case or dismisses an application and it considers the claim or application is totally without merit, the court order must record that fact and the court must at the same time consider whether it is appropriate to make a civil restraint order.
What is judgement without trial after striking out?
Where the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order
AND
the party against whom the order was made does not comply with it,
a party MAY OBTAIN JUDGEMENT WITH COSTS by filing a request for judgement if the order referred to relates to the whole of the statement of case,
AND
Where the party wishing to obtain judgement is the claimant, the claim is for either:
1. A specified amount of money
2. An amount of money to be decided by the court
3. Delivery of goods where the claim form gives the defendant the alternative of paying their value
4. Or any combination of these remedies.
Where judgement is obtained under this rule in a case where the party is requesting the delivery of goods or the alternative of paying for their value, it will be judgement requiring the defendant to deliver the goods or pay the value of the goods as decided by the court.
The request must state that the right to enter judgement has arisen because the court order has not been complied with.
Where the order did not relate to the whole of the statement of case or the claim is not for one of the above, the application must be made under part 23.
Can the court order the rectification of a mistake in proceedings?
Yes.
Where there has been an error of procedure such as a failure to comply with a rule or practice direction, 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.
Where is the small claims track the normal track?
Value of the claim is not more than £10k and
The value of any claim for personal injuries is not more than:
1k for RTA,
except where the person is a child or protected party and the claimant was using a motor cycle, a pillion passenger or in a sidecar, using a wheelchair, using a bicycle, riding a horse, or is a pedestrian, the claimant is an undischarged bankrupt, or the claimant is a personal representative of a deceased person or the defendant’s vehicle was registered outside of the united kingdom, at which point it would be 1k
1.5k for any other PI claim.
any claim which includes a claim by a tenant of residential premises against a landlord where—
(i)the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises (whether or not the tenant is also seeking some other remedy);
(ii)the cost of the repairs or other work to the premises is estimated to be not more than £1,000; and
(iii)the value of any other claim for damages is not more than £1,000; and
What does damages for personal injuries mean in respect of the normal track to allocate to?
Damages claimed for PSLA as a result of personal injuries.
What claims is the fast track for?
Any claim in which the small claims is not the normal track which:
(a) is a claim for monetary for relief of not more than £25k
OR
(b) is or includes a claim or non-monetary relief and any associated monetary relief is not more than 25k
a. the claim meets the following criteria at (6)
b. and the court is satisfied that it is in the interests of justice to allocate it to the fast track
(6) only if it considers that:
(a) the trial is likely to last for no longer than one day and any oral expert evidence is likely to be limited to one expert per party in relation to any field and, overall, expert evidence in two fields.
What claims is the intermediate track for?
Any claim neither suitable for small or fast track;
The claim is for monetary relief of not more than £100k;
(a) The court considers, if the case is managed proportionately, the trial will not last longer than three days;
(b) Oral evidence is likely to be limited to two experts per party
(c) The claim may be justly and proportionately managed under section 4 of part 28
(d) There are no additional factors which would make the claim inappropriate for the intermediate track
(e) And the claim is brought by one claimant against either one or two defendants (or vice versa)
Where the claim includes non monetary relief, it shall not be allocated to the intermediate track unless the court considers it to be in the interests of justice to do so.
It also can allocate any claim to a track where it considers it to be in the interests of justice
What claims is the multi track for?
Any claim that does not fall into the other ones or is (and it MUST BE in this case) a claim for clinical negligence unless it is one which would be normally allocated to the intermediate track
What does CPR 26 provide for?
Allocation of defended cases to case management tracks, their assignment to complexity bands, and the four tracks:
Small claims track
Fast track
Intermediate track; and
The multi track.
When shall the court allocate the claim to a track/complexity band?
After all parties have filed their directions questionnaires, or when giving directions under 26.4(10) (when a party does not comply with the notice of proposed allocation).
If the court has stayed the proceedings to allow for the settlement of the case, it shall allocate the claim to a track and assign it to a complexity band at the end of the stay.
Before deciding, the court may order further information to be provided or hold an allocation hearing if necessary, or give any orders it feels appropriate if a party fails to give a directions questionnaire.
What shall the court consider when deciding whether to allocate a claim to the normal track?
(a) The financial value
(b) Nature of the remedy sought
(c) Likely complexity of the facts, law, or evidence,
(d) Number of parties or likely parties
(e) Value of any counterclaim and the complexity of the matters related to it
(f) The amount of oral evidence which may be required
(g) Importance of the claim to persons who are not parties to the proceedings
(h) The views expressed by the parties (The court will treat the views expressed by the parties as an important factor, but decisions on allocation and assignment are for the court, to be taken in the light of all the circumstances, and the court will not be bound by any agreement or common view of the parties.)
(i) The circumstances of the parties
It shall DISREGARD the below:
(a) Any amount not in dispute
(b) Any claim for interest
(c) Costs
(d) Any contributory negligence
(e) Where the claim is a claim for non monetary relief, any amount prescribed by CPR 45.45 and 45.50
Where two or more claimants have started a claim against the same defendant using the same claim form and each claimant has a separate claim, the court shall consider the claim of each separately when it assesses financial value
How shall a party be notified of allocation?
Via the court serving a notice on every party
Can a court reallocate or assign a claim to a different track or complexity band?
Yes, on an application or its own initiative.
However, it may only do so in respect of a claim allocated to the intermediate track where directions have been given in exceptional reasons to justify it.
The court may only reassign a claim to a different complexity band where there has been a change in circumstances since a direction was made assigning the claim there and the court decides the change justifies a reassignment.
How does a court decide whether an amount is in dispute?
By applying the following general principles:
(a) any amount for which the defendant does not admit liability is in dispute;
(b) any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute;
(c) any specific sum claimed as a distinct item and which the defendant admits they are liable to pay is not in dispute; and
(c) any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.
(10)Where the case involves more than one money claim (for example where there is an additional claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead, it will generally regard the largest of them as determining the financial value of the claims.
What happens where a claimant claims an amount that the court thinks will exceed what they might be reasonably expected to recover?
(6) Where the court believes that the amount the claimant is seeking exceeds what they may reasonably be expected to recover it may make an order under rule 26.7(4) directing the claimant to justify the amount.
What are the general principles for allocation and case management where the normal track for a claim is the fast track?
(1) Where the court is to decide whether to allocate to the fast track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track.
(2) The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day.
(3)
(a) when it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard;
(b) the court will also take into account the case management directions (including the fixing of a trial timetable) that are likely to be given and the court’s powers to control evidence and to limit cross-examination;
(c) subject to paragraph (e), the possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the intermediate track or the multi-track;
(d) a claim may be allocated to the fast track or ordered to remain on that track although there is to be a split trial;
(e) where the case involves a counterclaim or additional claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track.
(4) Directions for the case management of claims which have been allocated to the fast track will be given at the allocation stage or at the listing stage (in either case with or without a hearing) or at both or and if necessary at other times. The trial judge may, at or before the trial, give directions for its conduct.
What is the purpose of cost management?
That the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective
When must budgets be filed?
All parties except LIPS must file and exchange budgets:
(a) Where the value of the claim as stated on the claim form is less than £50k, with their directions questionnaires; or
(b) In any other case, not later than 21 days before the first case management conference
In the vent a party files and exchanges a budget as above, all other parties that aren’t LIPS, must file an agreed budget discussion report no later than 7 days before the first case management conference
May the court order budgets where they are not usually required?
Yes, on an application or its own initiative and shall do so (other than in an exceptional case) if all parties consent to an application for such an order
What may the court order in a substantial case?
Direct that budgets are to be limited in the first instance to part only of the proceedings and extended later to cover the whole
What are the formal requirements on the budgets?
Must be dated and verified by a statement of truth signed by a senior legal representative of the party
Every party must also provide a LIP a copy of their budget
What is the effect of a failure to file a budget?
Any party failing to do so will be treated as having filed a budget comprising only of the applicable court fees.
What are cost management orders?
A way for the court to manage the costs to be incurred by any party.
In addition to the below, the court may record any comments it has about the incurred costs which are to be taken into account in any subsequent proceedings.
They will:
(a) Record the extent to which the budgeted costs are agreed between the parties
(b) In respect of those which are not agreed, record the court’s approval after making appropriate revisions
(c) Record the extent (if any) to which incurred costs are agreed
What is the subsequent effect of a cost management order?
The court will thereafter control the parties’ budgets in respect of recoverable costs.
The court may set a timetable or give other directions for future reviews of budgets.
When can a court make a cost management order?
At any time. Where costs budget have been filed and exchanged the court will make a costs management order unless it is satisfied that the litigation can be conducted justly and at proportionate cost without.
What must a party do after their budget has been approved or agreed?
Re-file and re-serve in the form approved or agreed with re-cast figures and annexed to the order approving it or recording that agreement.
What isn’t it the role of the court in respect of cost management orders?
To fix or approve the hourly rates claimed in the budget. It is merely concerning the totals allowed for each phase of the budget.
Can a party revise their budget?
Yes, on account of significant developments in the litigation.
What must happen re revised budgets?
Must serve particulars of the variation using form prescribed by PD 3D
Confine the particulars to the additional costs
Certify that the additional costs are not included in any previous budgeted costs or variation.
Must be submitted promptly, alongside last approved or agreed budget, and an explanation of the points of difference if they haven’t been agreed
What may the court do re revised budgets?
Approve, vary, or disallow the proposed variations having regard to any significant future developments, or may list a further costs management hearing
Where variation is made, it may vary the budget related to that variation which have been incurred prior to the order for variation but after the costs management hearing.
What is a costs management conference?
Any hearting which is convened solely for the purpose of costs management. Should be conducted via telephone or in writing.
When making case management decisions, what account, if any, should the court take of budgets and costs?
The court will have regard to them, whether or not a costs management order has been made.
The court may not approve costs incurred up to and including the date of any costs management hearing, but may record its comments on those costs and take those costs into account when considering the reasonableness and proportionality of all budgeted costs.
If an interim application is made, the court may treat those costs as additional to the approved budgets if it considers it reasonable to not have included those costs in the budget,
