13. Case Management, Sanctions, Striking Out, and Discontinuance

Question 1

How is time calculated under the CPR?

Answer 1

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.

Question 2

May the time limits be varied by parties?

Answer 2

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.

Question 3

What powers of case management does the court have?

Answer 3

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.

Question 4

What must the court consider when exercising its case management powers?

Answer 4

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.

Question 5

Can a Court make an order on its own initiative?

Answer 5

Except where provided otherwise, the court may exercise its powers on an application or on its own initiative.

Question 6

What is the procedure when a court wishes to make an order on its own initiative?

Answer 6

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.

Question 7

What procedure should be followed when making an application to vary a case management order made on the court’s own initiative?

Answer 7

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.

Question 8

What is judgement without trial after striking out?

Answer 8

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.

Question 9

Can the court order the rectification of a mistake in proceedings?

Answer 9

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.

Question 10

Where is the small claims track the normal track?

Answer 10

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

Question 11

What does damages for personal injuries mean in respect of the normal track to allocate to?

Answer 11

Damages claimed for PSLA as a result of personal injuries.

Question 12

What claims is the fast track for?

Answer 12

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.

Question 13

What claims is the intermediate track for?

Answer 13

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

Question 14

What claims is the multi track for?

Answer 14

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

Question 15

What does CPR 26 provide for?

Answer 15

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.

Question 16

When shall the court allocate the claim to a track/complexity band?

Answer 16

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.

Question 17

What shall the court consider when deciding whether to allocate a claim to the normal track?

Answer 17

(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

Question 18

How shall a party be notified of allocation?

Answer 18

Via the court serving a notice on every party

Question 19

Can a court reallocate or assign a claim to a different track or complexity band?

Answer 19

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.

Question 20

How does a court decide whether an amount is in dispute?

Answer 20

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.

Question 21

What happens where a claimant claims an amount that the court thinks will exceed what they might be reasonably expected to recover?

Answer 21

(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.

Question 22

What are the general principles for allocation and case management where the normal track for a claim is the fast track?

Answer 22

(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.

Question 23

What is the purpose of cost management?

Answer 23

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

Question 24

When must budgets be filed?

Answer 24

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

Question 25

May the court order budgets where they are not usually required?

Answer 25

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

Question 26

What may the court order in a substantial case?

Answer 26

Direct that budgets are to be limited in the first instance to part only of the proceedings and extended later to cover the whole

Question 27

What are the formal requirements on the budgets?

Answer 27

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

Question 28

What is the effect of a failure to file a budget?

Answer 28

Any party failing to do so will be treated as having filed a budget comprising only of the applicable court fees.

Question 29

What are cost management orders?

Answer 29

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

Question 30

What is the subsequent effect of a cost management order?

Answer 30

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.

Question 31

When can a court make a cost management order?

Answer 31

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.

Question 32

What must a party do after their budget has been approved or agreed?

Answer 32

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.

Question 33

What isn’t it the role of the court in respect of cost management orders?

Answer 33

To fix or approve the hourly rates claimed in the budget. It is merely concerning the totals allowed for each phase of the budget.

Question 34

Can a party revise their budget?

Answer 34

Yes, on account of significant developments in the litigation.

Question 35

What must happen re revised budgets?

Answer 35

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

Question 36

What may the court do re revised budgets?

Answer 36

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.

Question 37

What is a costs management conference?

Answer 37

Any hearting which is convened solely for the purpose of costs management. Should be conducted via telephone or in writing.

Question 38

When making case management decisions, what account, if any, should the court take of budgets and costs?

Answer 38

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,

Question 39

How does a court assess costs on the standard basis where a costs management order has been made?

Answer 39

The court will-
Have regard to the receiving party’s last approved or agreed budgeted costs
Not depart from them unless satisfied there is good reason to do so; and
Take into account any comments made on the face of the order

Question 40

Are the parties expected to lodge any documents other than Precedent H and the budget discussion report for costs budgeting purposes?

Answer 40

No, unless the court so orders or there are exceptional circumstances

Question 41

What format must the budget be in?

Answer 41

Unless the court otherwise orders, in the form of precedent H. Landscape format with an easily legible typeface.
In cases where a party’s total costs do not exceed 25k or the value of the claim on the claim form is less than 50k, the parties must only use the first page of precedent H.

Question 42

How will a court decide the reasonableness or proportionality of each phase of costs?

Answer 42

Regarding the factors in CPRs 44.3(5) and 44.4(3) including a consideration of where and the circumstances in which the work was done.

Question 43

When reviewing budgeted costs, how will the court approach the assessment?

Answer 43

Will not undertake a detailed assessment in advance but instead consider whether the budgeted costs fall within the range of reasonable and proportionate.

Question 44

What sanctions may be imposed on a party who fails to comply with case management directions?

Answer 44

1. Payment of a sum of money into court (CPR 3.1 (5) & (6)
2. Striking out of whole or part of their statement of case, plus judgment against them accordingly (CPR 3.4(2) and (3)).
3. An ‘unless order’ – e.g. the granting of an extension of time with sanctions if they fail to comply (PD29 para 7.3)
4. Costs sanctions in respect of any adjournment necessary as a result of the default.

Question 45

What is a notice of proposed allocation?

Answer 45

If a defendant files a defence (except where the claim is under the pre-action protocol for personal injury claims below the small claims limit in RTAs and proceedings have been started under para 27) a court officer shall provisionally decide the track and serve a notice of proposed allocation.
This notice shall:
a. Specify any matter to be complied with by the date specified in the notice
b. Require the parties to file a completed directions questionnaire and serve copies on all other parties
c. State the address of the court or office to which the directions questionnaire must be returned
d. Inform the parties how to obtain a directions questionnaire
e. If the case appears suitable for allocation to the fast track, intermediate track, or multi-track, require the parties to file proposed directions by a date specified.
The court shall serve the questionnaire on any unrepresented party.
Where there are two or more defendants and at least one files a defence, the court shall serve the notice when all defendants have served their defence or the period for filing the last defence has expired.

Question 46

Should a notice of proposed allocation be sent where the defendant is relying on the defence that the money owed has already been paid?

Answer 46

Not until the claimant has field a notice requiring the proceedings to continue.

Question 47

When should the documents required in the notice be filed and served?

Answer 47

No later than the date specified in it.

Question 48

What date should the proposed allocation have on it?

Answer 48

For a small claims one, at least 14 days
Or otherwise 28 days
After the date when it is deemed to be served on the party in question.
This cannot be varied by the parties but can be varied by a practice direction in respect of claims issued by the production centre.

Question 49

What happens if a party does not comply with a proposed allocation notice in respect of a claim for money in the county court?

Answer 49

The court shall serve a further notice requiring compliance within 7 days and, should the party still not comply, the party’s statement of case shall be struck out without further order.
A party’s claim that has been struck out in this way shall, unless the court thinks it unjust to do so, be ordered to pay the costs that the default caused to any other party

Question 50

Can the court impose a stay at the directions stage?

Answer 50

Yes, a party can make a written request for a stay for the purpose of settling the case when filing the directions questionnaire.

Question 51

How long would a stay be under a directions questionnaire one?

Answer 51

If all parties agree, a stay for one month.
If the court otherwise considers that such a stay would be appropriate, the court may direct that the proceedings, either in whole or in part, be stayed for one month or another such period as it sees fit
The court may extend the stay until such date or for such a specified period as it sees fit
Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached. If it is not, or the claimant does not tell them, the court shall give such directions as to the management of the case as it considers appropriate

Question 52

What directions will a court give for the fast track?

Answer 52

The court shall give directions for the management of the case and set a timetable for the steps to be taken between giving the directions and the trial. For the fast track, the court shall give directions when it allocates the case unless it considers necessary to fix a case management conference

Question 53

What directions will a court give for the intermediate track?

Answer 53

The court shall give directions for the management of the case and set a timetable for the steps to be taken between giving the directions and the trial. For the intermediate track, the court may give directions or fix a case management conference when allocation occurs.

Question 54

What directions will be given for the fast and intermediate tracks?

Answer 54

It shall:
(a) Make an order for disclosure and
(b) Either fix the trial date or fix a period, not exceeding 3 weeks, within which the trial is to take place

Question 55

May a case management timetable be varied for the fast and intermediate tracks?

Answer 55

Yes, on application by a party for a date which the court has fixed for:
(a) Any case management conference
(b) Any pre-trial review
(c) Filing the pre-trial check list
(d) The trial
(e) Or the trial period
Any date set by the court or the rules for doing an act may not be varied if the variation would make it necessary to vary any of the above dates.

Question 56

What matters are to be dealt with by directions for the fast track?

Answer 56

Disclosure of documents, service of witness statements, and expert evidence.
Any directions shall be in the form set out in the CPRs.

Question 57

How should the parties try to agree directions?

Answer 57

Must endeavour to agree appropriate directions for the management of the proceedings and submit these to the court at least seven days before any case management conference, where the court approves agreed directions or issues its own, the parties hall be notified and the case management conference vacated accordingly.

Question 58

What can the court do re: setting a case management conference?

Answer 58

It may fix it and a pre-trial review.

Question 59

What matters can be dealt with via directions for the intermediate track?

Answer 59

(a) Disclosure of documents
(b) Service of witness statements
(c) Expert evidence
(d) Whether to fix a pre-trial review
(e) Listing the case for trial
Specifically for the intermediate track:
(A) Oral expert evidence is limited to one witness per arty, save where the oral evidence of a second is reasonably required and is proportionate and
(B) any trial time estimate must not exceed 3 days
Unless the court orders others, for the intermediate track:
(a) the total length of all the permitted witness statements and summaries shall not exceed 30 pages; and
(b) any expert report shall not exceed 20 pages (including the description of their instructions and the issues + the conclusions and reasons) but excluding the CV and any supporting materials such as photographs, plans and academic articles
(c) the court may give directions or fix a case management conference when allocation occurs and make an order for disclosure and fix the trial date or period.

Question 60

What case management decisions should be made for the multi-track at allocation?

Answer 60

When allocated, the court will give directions for the management of the case and timetable for the steps to be taken between giving directions and trial (perhaps without a hearing) OR may fix a case management conference or pre-trial review OR do all of the above, and give other directions relating to management as it sees fit.
The court will fix the date or period as soon as is practicable.
When it does fix the date or period, the court will give notice to the parties and specify the date by which the parties must file a pre-trial checklist.

Question 61

What case management decisions can be made for the multi-track after allocation?

Answer 61

The court may fix a case management conference or pre-trial review any time after the claim has been allocated
If a party has a legal representative with authority to deal with any issues that are likely to arise must attend case management conferences and pre-trial reviews?

Question 62

What steps should be taken re directions for the multi-track by the parties?

Answer 62

Must endeavour to agree appropriate directions and submit these or their proposals at least seven days before any case management conference. Where the court approves these or issues its own, the parties will be notified by the court and any case management conference will be vacated.

Question 63

How may a case management timetable be varied for the multi-track?

Answer 63

A party must apply to the court in respect of a variation in the date of
(a) a case management conference
(b) pre-trial review
(c) the return of a pre-trial checklist
(d) the trial
(e) or the trial period
any date set by the court or the rules must not be varied by the parties if it would make it necessary to vary the above.

Question 64

What is the pre-trial check list (listing questionnaire)?

Answer 64

The court will send the parties a pre-trial check list (listing questionnaire) for completion and return by the date specified in directions given unless it considers the claim can proceed to trial without the need. Each party must file this within the date specified
If no party files the completed check list by the date specified m the court will order that unless a completed pre-trial check list is filed within 7 days from service of that order, the claim, defence, and any counterclaim will be struck out without further notice
If one party files it but the other doesn’t, or a party has failed to give all the information requested, or the court considers a hearing is necessary to enable directions to be formulated, the court may give such directions as it considers appropriate.

Question 65

What may the court do in respect of a pre-trial review on receipt of the parties pre-trial check lists?

Answer 65

If it decides to hold or cancel a pre-trial review, it must serve notice of its decision at least 7 days before the date fixed for the hearing or the cancelled hearing

Question 66

What may the court do in respect of setting a timetable for multi-track cases?

Answer 66

As soon as practicable after one party has filed a completed check list, the court has held a listing hearing, or the court has held a pre-trial review, the court will:
(a) Set a timetable for the trial unless it has already been fixed or the court considers it would be inappropriate to do so
(b) Confirm the date for trial or the week within which the trial is to begin; and
(c) Notify the parties of the trial timetable and the date or trial period

Question 67

How will the trial be conducted with respect to any orders previously made at the pre-trial stage on the multi-track?

Answer 67

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

Question 68

Where will case management take place for the multi track?

Answer 68

For those proceedings at the RCJ, there.
Otherwise, at a civil trial centre

Question 69

What are the hallmarks of the multi-track?

Answer 69

Ability of the court to deal with cases of widely different values and complexity and the flexibility given to the court in its case management powers
I.e., the court can give directions without a hearing

Question 70

Who will deal with case management on the multi-track?

Answer 70

A Master in cases proceeding in the RCJ
A DJ in cases proceedings in a District Registry of the High Court, and
A DJ or CJ in cases proceeding in the county court

Question 71

How will the court tailor its directions on the multi-track?

Answer 71

According to the needs of the case and the steps already undertaken, including compliance with any PAPs or PDs.
The court’s concern at this stage will be to ensure that the issues between the parties are identified and that the necessary evidence is prepared and disclosed

Question 72

What order for disclosure of expert reports where required for both liability and quantum may the court make on the multi-track?

Answer 72

It may order those relating liability to be exchanged simultaneously but those relating to damages be exchanged sequentially.

Question 73

What will the court do at case management conferences on the multi track?

Answer 73

Review the steps which the parties have taken in the preparation of the case and in particular their compliance with any directions given
Decide and give directions about the steps which are be to taken in order to secure the progress of the claim in accordance with the overriding objective
Ensure as far as possible that all agreements that can be reached between the parties about matters in issue are reached and recorded

Question 74

Where a party has a legal representative with sufficient authority to deal with any issues, what must happen in respect of case management hearings? Also, who may this be?

Answer 74

They must attend.
Someone personally involved in the conduct of the case and who has the authority and information to deal with any matter which may reasonably be expected to be dealt with at such a hearing, including the fixing of the timetable, the identification of issues and matters of evidence.
Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, the court will expect to make a wasted costs order.

Question 75

What topics may a court consider at the case management hearing on the multi-track?

Answer 75

1. Whether the claimant has made clear the claim he is bringing and in particular the amount he is claiming so that the other party can understand the case he must meet
2. Whether any amendments are required to the claim, a statement of cae, or any other document
3. What disclosure is necessary
4. What expert evidence is reasonably required and how and when that evidence should be obtained and disclosed
5. What factual evidence should be disclosed
6. What arrangements should be made about giving clarification or other information and the putting of questions to experts and
7. Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues
   The court, at this stage, will not give permission to use expert evidence unless it can identify each expert by name or field in its order and say whether his evidence will be oral or written

Question 76

What happens where a party wishes to obtain an order not routinely made at a case management conference and he believes this will be opposed on the multi-track?

Answer 76

He should issue and serve the application in time for it to be heard at the case management conference

Question 77

How may directions be varied on the multi-track?

Answer 77

Must appeal within 14 days of service of the order, otherwise the order stands.
He may appeal or apply to the court to reconsider.
A party should appeal if the order was given at a hearing he was present at or given due notice about.
In any other case, he should apply for reconsideration.

Question 78

What happens on the multi-track when a party applies for a court to reconsider its decision on a case management order?

Answer 78

Will usually be heard by the judge who gave the directions or of another judge of the same level
The court will; give all parties at least 3 days’ notice of the hearing
The court will confirm its directions or make a different order

Question 79

What happens if there has been a change in circumstances since a case management order on the multi-track?

Answer 79

The court may, on application or its own initiative, vary or set aside a direction that is given

Question 80

What happens if the parties agree to vary a case management order on the multi-track?

Answer 80

Depending on the rule relied upon, the parties need not file this.
In any other case the parties must apply for an order by consent via filing a draft order and agreed statement of reasons for the order

Question 81

What happens where a party fails to comply with a direction given by the court on the mutli track?

Answer 81

Apply for a sanction or an order for a party to do something.
The party so entitled must apply ASAP and first warn the other party of his intention to do so
The court may take into count the extent of the delay when it decides to make any order imposing a sanction or to grant relief from a sanction imposed.

Question 82

Will a failure to comply with a direction lead to postponement of the trial on the multi-track?

Answer 82

No, unless the circumstances are exceptional.
If it is practical to do so the court will exercise its powers in a manner that enables the case to come on for trial on the date or within the period previously set
The court will assess what steps each party should take and direct those are taken in the shortest possible time and impose a sanction for non-compliance which may deprive a party of their right to raise or contest an issue
Where it appears that one or more issues are or can be made ready while others cannot, the court may direct that the trial will proceed on the issues which are then ready and direct hat no costs will be allowed for any later trial of the remaining issues or that no costs will be allowed for the party in default
Where the court has no option but to delay, it will delay for the shortest time possible and give directions in the most rapid way possible. This is an order of last resort. In such a case, the court may compel a party or their representative to attend court
The court will not postpone any other hearing without a very good reason, and for that purpose the failure of a party to comply on time with directions previously given will not be treated as a good reason

Question 83

Where is the trial likely to be held on the multi-track?

Answer 83

At a civil trial centre or another court if appropriate.

Question 84

What may a judge do in respect of opening addresses on the multi-track?

Answer 84

He may dispense with them.

Question 85

What must the court consider on an application for relief from sanctions?

Answer 85

All the circumstances of the case, so as to enable it to deal justly with the application, including the need:
(a) For litigation to be conducted efficiently and at proportionate cost; and
(b) To enforce compliance with rules, practice directions, and orders
Gives the court a general discretion to give relief from sanction. Does not apply where sanction is an order for payment of costs (appeal is the remedy)

Question 86

Would refusal to grant relief from a debarring sanction contravene art. 6?

Answer 86

No so long as it is proportionate and was for a legitimate purpose

Question 87

What must accompany an application for relief from sanctions?

Answer 87

Evidence.

Question 88

What guidance on deciding whether to grant relief from sanctions was given

Answer 88

Denton:
Should be addressed in three stages:
1. Assess the seriousness and significance of the failure to comply (if it is not serious or significant, not likely to take long)
2. Assess why the default occurred
3. Evaluate all the circumstances of the case, so as to enable the court to deal justly with the application

Question 89

When may a failure to comply with the rules/pd e.c.t. be serious and significant in context of granting relief from sanctions?

Answer 89

Good yardstick is whether it imperilled future hearing dates.
Failure to pay court fees is also serious.
There are degrees of seriousness and significance
Should firstly consider the breach in question, with previous breaches to be considered when considering all the circumstances of the case
If it is not serious or significant, likely to be granted
Failure to comply with an unless is a pointer to serious and significant (the breach in those cases extends to both failure to comply with the original rule and the extended one)
A conditional order of payment can be treated as not an unless one.
2 days late after an unless order, even without imperilling the trial date, is serious and significant
If an application is made for two separate sanctions, the court should first assess them individually before assessing them together when considering all the circumstances of the case

Question 90

What should the court do when assessing why the default occurred for relief from sanctions?

Answer 90

Examples include:
A party or his solicitor suffering from debilitating illness
Later developments if they show the original times for compliance were unreasonable
If some good reason is shown, then relief will usually be granted

Question 91

What should the court do when considering all the circumstances of the case for relief from sanctions?

Answer 91

It should always consider all the circumstances
Should give particular consideration to:
(a) The need for litigation to be conducted efficiently and at proportionate cost
(b) The need to enforce compliance with the rules (will no longer have lax compliance)
Other circumstances may include whether the sanctions are proportionate to the breach and other past or current breaches.
The more serious and significant the breach the less likely relief will be granted.
Relief has been granted even for unless orders where the breach was not serious nor significant (delay of 45 minutes)
A lack of promptness in applying for relief may be a factor.
Also, other factors may include how far advanced the claim is, how close the trial was, whether the breach would mean the trial was unfair.
A two month delay in applying for relief would militate heavily against granting relief.

Question 92

How does opportunism from parties factor into whether relief from sanctions is granted?

Answer 92

Parties who opportunistically and unreasonably oppose applications for relief from sanctions breach the duty in the overriding objective. Wholly inappropriate to act in this way. Should act cooperatively. Heavy cost sanctions may be imposed on parties who do not act properly.
Party is not always required to agree extensions when it would cause him to suffer prejudice.
Only need to act cooperatively where to do otherwise would be unreasonable.

Question 93

From when do sanctions have effect?

Answer 93

They have effect unless the defaulting party obtains relief.
Where it is costs, however, the only relief is by appealing.

Question 94

How may parties agree extensions of time for doing something?

Answer 94

Where a rule/pd/court order specifies a party must do something within a specified time and specifies the consequences of a failure to comply, the time can only be extended via agreement through the parties and up to a maximum of 28 days provided it is in a written format to the court and that such an extension does not put at risk any future hearing date.

Question 95

Is default judgment a ‘Sanction’?

Answer 95

Yes

Question 96

What power does the court have to strike out?

Answer 96

It may strike out a statement of case if it appears to the court:
(a) The SOC discloses no reasonable grounds for bringing or defending the claim;
(b) The statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) That there has been a failure to comply with a rule, PD, or court order.
It may make any consequential order it considers appropriate.

Question 97

What can the court do where it strikes out a statement of case but another party puts another claim in?

Answer 97

Where:
the court has struck out a claimant’s statement of case; and
the claimant has been ordered to pay costs; and
before paying them, the claimant starts another claim against the same defendant, arising out of facts which are the same or substantially the same as to the one which was striken out,
the court may, on application of the defendant, stay that other claim until the costs of the first have been paid

Question 98

What must the court do where the court strikes out a claim and considers it is totally without merit?

Answer 98

Must record that fact and consider whether it is appropriate to make a civil restraint order.

Question 99

Must a defence be filed before hearing of a strike out?

Answer 99

No

Question 100

What does a statement of case mean in respect of strike out?

Answer 100

Claim form, POCS, defence, PT 20 claim, reply to defence, and any further information given in relation to them voluntarily or by court order

Question 101

What does strike out mean?

Answer 101

Deletion in the effect that it can no longer be relied upon

Question 102

When will an application for strike out be made?

Answer 102

Often Pre-trial, often alongside summary judgment. However can be made immediately before or during trial and even adjourned to be dealt with at a trial.
Court may act on its own volition.
Can be exercised at issue.
No power to strike out after judgment.

Question 103

What does the grounds of no reasonable grounds for bringing or an abuse of the courts process/obstruct the just disposal of the proceedings mean for strike out?

Answer 103

Cover cases which are unreasonably vague, incoherent, vexatious, scurrilous, or obviously ill-founded and other cases which do not amount to a legally recognisable claim or defence.

Question 104

What does the ground of a failure to comply mean for strike out?

Answer 104

Where the abuse lies in how it has been conducted. Can be made even where it does not specify that the remedy is strike out for a breach. May seem unduly harsh unless they are warned.
The court may instead order payment of a sum of money. In the case of non compliance with a court order, the court may reiterate its order and impose conditions or specifying remedy on a failure to comply
May also order costs on an indemnity basis payable forthwith ordering payment into court, and awarding interest at a higher or lower rate.

Question 105

What principles apply to deciding a strike out application?

Answer 105

Denton principles have direct relevance:
1. Assess the seriousness and significance of the failure to comply (if it is not serious or significant, not likely to take long)
2. Assess why the default occurred
3. Evaluate all the circumstances of the case, so as to enable the court to deal justly with the application
However, the ultimate question is different as there is also the proportionality of the sanction is in issue

Question 106

Should evidence be given in strike out proceedings?

Answer 106

Does not need to but applicant should be wary that there may be a need to prove the facts they allege.

Question 107

Can the claimant obtain default judgment where a strike out application is under consideration?

Answer 107

Not until disposed of.

Question 108

Can a strike out application be decided on the papers?

Answer 108

No, needs to be made orally (except where otherwise stated in the CPR such as “will be striken out without further order”)

Question 109

What does a ‘statement of case discloses no reasonable grounds for bringing or defending a claim mean’?

Answer 109

Claims which set out no facts indicating what the claim is about
Those claims which are incoherent and make no sense
Those claims which contain a coherent set of facts but, even if true, do not disclose any legally recognisable claim against the defendant (not appropriate to do if it is a novel area of jurisprudence).
For defences, a bare denial, or no coherent statement of facts, or the facts it sets out contains no defence.
Cases which raise an unwinnable case where continuance is without any possible benefit to the respondent and would waste resources on both sides.
Not appropriate to strike out where discloses a serious live issue only able to be decided at an oral earing.
Should not be granted unless know it is bound to fail.
If a SOC is defective, court should first consider whether amendment would be appropriate first and should give such cases an opportunity to be amended.

Question 110

Does art 6 apply to strike out cases?

Answer 110

Should be careful to not strike out giving the effect of immunities from civil liability from one particular set of persons (i.e. the police).
However, English courts have taken the view that art 6 does not prevent such cases as it only applies to genuine and serious disputes – any claim must be presumed to be so but if a strike out views it is not then that is ok to do.

Question 111

What guidance is given as to when a statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings for strike out?

Answer 111

Using that process for a particular purpose or in a way significantly different from its ordinary and proper use.
Categories of abuse are many and not closed.
Court has power to strike out a prima facie claim where there is an abuse of process. However, there has to be an abuse and striking out has to be supportive of the overriding objective. Does not follow that all abuse cases are proportionate to strike out. Should be a last option to strike out.

Question 112

What is the effect of an attempt to re-litigate issues which were raised or should have been raised in previous proceedings or earlier in the same proceedings?

Answer 112

May allow for a strike out (such as because of res judicata – it has already been decided)
Principles of res judicata applies to every point which parties exercising reasonable diligence might have brought forward at the time.
Overriding public interest in finality of litigation. May amount to an abuse.
It may not be abusive depending on the facts.
Rules also applies to parties to subsequent proceedings who were not joined as parties to the earlier proceedings.
More of a rule of public interest.
Does not follow that a previous issue should have been mentioned where it simply possible that it could have been.

Question 113

Is it an abuse to institute proceedings to attack previous decisions?

Answer 113

Yes. May be an abuse to institute a collateral attack upon a final decision against the claimant which has been made by another court of competent jurisdiction in previous proceedings in which the claimant had the full opportunity of contesting the decision of the court in which it was made

Question 114

May the court make an unless order?

Answer 114

Yes, it may make such an order.

Question 115

What should the court think about when making an unless order?

Answer 115

Should consider carefully whether the sanction is appropriate in all the circumstances.

Question 116

May there be relief from an unless order?

Answer 116

Yes, it has discretion.
The court will consider all the circumstances.

Question 117

If a party fails to comply with an unless order, does the court need to order the claim striken out?

Answer 117

No. The consequence follows automatically.

Question 118

May the opposition party to the party whose claim is striken out obtain judgment?

Answer 118

Yes by filing a request for the judgment or through an application under part 23.
The court’s function is limited to deciding what order should be made to reflect the sanction of the court and the operation of the sanction does not lie in the discretion of the court as it is only if there is an application whether the court is required to consider it is just to make an order granting relief from the sanction actually imposed.
A failure to comply with a disclosure order for quantum and costs can mean an unless order is granted for onerous costs.

Question 119

Where is the procedure to discontinue contained?

Answer 119

CPR Part 38

Question 120

Is it a discontinuance if a claimant who claims more than one remedy abandons one remedy?

Answer 120

No

Question 121

What is the right to discontinue?

Answer 121

At any time, a claimant may discontinue all or part of a claim against one or more defendants.

Question 122

Is permission of the court needed to discontinue a claim?

Answer 122

No, unless:
It is a claim in relation to which:
1. The court has granted an interim injunction; or
2. Any party has given an undertaking to the court
Where the claimant has received an interim payment, only if:
1. The defendant who made the payment consents to it in writing; or
2. The court gives permission
Where there is more than one claimant, onl if:
1. Every other claimant consents in writing; or
2. The court gives permission

Question 123

What is the procedure for discontinuing?

Answer 123

A claimant must file:
1. A notice of discontinuance
2. Serve it on every other party to the proceedings

Question 124

What must be included in and/or accompany the notice of discontinuance?

Answer 124

Must include:
1. A statement that they have served notice on every other party
2. Which defendants the claim is discontinued against where there is more than one defendant
3. In the form N279
Must accompany:
Where consent is needed from some other party, a copy of the necessary consent

Question 125

Can a notice of discontinuance be set aside?

Answer 125

Yes, by the defendant. A claimant may only do so as an error under CPR 3.10

Question 126

When can an application to set aside a notice of discontinuance be made?

Answer 126

Only within 28 days after the date of the notice after it has been served on them

Question 127

When does discontinuance take effect where the permission of the court is not needed?

Answer 127

On the date the notice is served on them. The claim is brought to an end on that day.

Question 128

How does discontinuance affect liability on costs?

Answer 128

Unless the court otherwise orders, a claimant who discontinues is liable for the costs for the defendant of which he discontinued against.
If proceedings are only partly discontinued, the claimant is liable only for costs relating to that part of the proceedings and those costs must only be assessed after the trial.
This does not apply to the small claims track, however

Question 129

Can a claimant make another claim after discontinuing?

Answer 129

They need the permission of the court if:
(a) They discontinued after the defendant filed a defence or, in a part 8 claim, filed an acknowledgement of service or written evidence; and
(b) The other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim

Question 130

What is the procedure getting permission for making another claim after a discontinuance?

Answer 130

If the claimant considers permission is needed, the application for permission shall be included in the claim form and the claim will only proceed if permission is granted.
If the defendant asserts permission is needed, they will inform the court as soon as is practicable.
If the parties agree permission should be granted, the court shall issue an order granting permission on the papers or make such other order as it thinks fit.
If the parties disagree about whether permission should be granted, the court shall determine the issue either wat a hearing or, in its discretion, on the papers after receiving written representations.
Defendant is not required to file an acknowledgment of service unless and until the permission is granted.