3. Dispute Resolution__8 - Case and Cost Management

Question 1

What is case management? The giving of directions and the management of a case. It goes hand in hand with managing the costs of the litigation. Mostly on a concern on the multi-track.

Question 2

The court’s general case management powers • Extend/shorten the time for compliance with any rule

Answer 2

practice direction or court order. • Adjourn hearings or bring them forward. • Require a party or their legal representative to attend court. • Stay the whole or part of the proceedings or judgment either generally or until a specified event. • Order any party to file and serve a costs budget.

Question 3

What does it mean for the court to make an order of its own initiative? Without either party taking a step

Answer 3

the court could provide new directions or terminate a case. If this is without hearing and without representations

the court will include a stateent in the order that hte parties have a right to apply to set aside

stay or vary the order within a given period If no deadline specified

then application should be made wiithin 7 days of the date on which the order was served on the party.

Question 4

Strike out meaning The deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party. It can include deletion of the entire statement of case so that the case is effectively over. Strike out is designed to target cases that are inadequately drafted or are otherwise an abuse of the court process.

Question 5

When can the court exercise its power to strike out? On its own initiative or on the application of a party. Applications should be made as soon as possible and preferably before allocation. It is used sparingly. Better ways to deal are often requiring the party at fault to amend its statement of case or

Answer 5

if the ground for striking out is failure to comply with previous orders made by the court

imposing a sanction such as an adverse costs order.

Question 6

Difference between strike out and summary judgment Strike out - focuses on statement of case Summary judgement - covers cases which are weak on the facts

Question 7

Three tracks Small claims track - normal track for cases of <£10

Answer 7

000 and claims by tenant of residential property against landlord for repairs where repairs/ claim are <£1000 Different rules for PI claims Fast claims track - normal track for claims >£25

0

provided that: - trial is likely to last no longer than 1 day = 5 hours - only oral expert evidence from 1 expert per party in each of no more than 2 expert fields Multi-track - all other types of cases

Question 8

Small claims track - PI claims PI claim where value of claim is <£10

Answer 8

000Road traffic claims where damages for PI are <£1000

and: - Claimant is child or protected party

or - Occurred before 31 May 2021

or - Claimant was riding a motorcycleOther road traffic claims

PI damages are <£5000Other PI claims

the damages for PI <£1500

Question 9

Allocation process

Question 10

Notice of proposed allocation Court officer provisionally decides track which appears the most suitable for the claim. The notice of proposed allocation contains this

Answer 10

and requires the parties to: (a) File and serve a directions questionnaire (b) On the fast track or multi-track

file proposed directions; and (c) For claims under the costs management regime

file and serve a costs budget and an agreed budget discussion report. And states deadlines

Question 11

What is the directions questionnaire? The information required to enable the court to determine which track the case will be allocated to is provided by the parties Form N180 - small track Form N181 - fast track and multi track - Parties confirm also that they have complied with pre-action protocols - Can request for court to stay proceedings so they can try to settle - Case management information - Witnesses - Expert evidence - Time needed - Agree directions - Which court? - Which track do you think? - Interim applications - Any other facts

Question 12

DQ: Settlement Parties can request that the court stay the proceedings so the parties can try to settle In this time

Answer 12

the parties are prevented from taking any steps in the proceedings Legal representatives have to confirm in the DQ that they have explained to their client the need to consider settling the claim and that there could be costs consequences against them if the client unreasonably refuses to try to settle. If stayed

it will be stayed for 1 month. After this

if not settled and parties have not applied for an extension

case will be referred to a judge. If 1 party requests a stay

the coourt can stay the claim if it considers it appropriate.

Question 13

DQ: Disclosure Provide case management information including extent of disclosure. Parties exchange documents

Answer 13

so each party serves list of documents which exist and the recipient can insoppect hte listed documents

Question 14

DQ: Witnesses Name witnesses and what they think they will prove The other party can approach the other party’s witness and get their views/ assistance. So speak to them!

Question 15

DQ: Expert evidence Requires court permission.

Question 16

DQ: Trial Estimate time for trial. Consult counsel for accurate estimate.

Question 17

DQ: Costs If multi-track

Answer 17

will need ot file a costs budget

Question 18

DQ: Agree directions The DQ also requires parties to attempt to agree directions and to attach them

Answer 18

if the case has been provisionally allocated to the fast or multi-track. Proposed directions must be filed with the DQ

whether the parties have managed to reach agreement or not

Question 19

Criteria for case allocation Principal criterion is how much teh claim is worth. But

Answer 19

also: (a) The financial value of the claim; (b) The nature of the remedy sought; (c) The likely complexity of the facts

law or evidence; (d) The number of parties or likely parties; (e) The value of any counterclaim or other additional claim (the court will not aggregate claims but will look at the value of the largest claim); (f) The amount of oral evidence which may be required; (g) The importance of the claim to any persons who are not parties; (h) The views expressed by the parties; and (i) The circumstances of the parties.

Question 20

Process for case allocation

Question 21

If notice of proposed allocation = multi-track

Answer 21

then: - The court gives directions - Convenes a case management conference (CMC)

Question 22

Purpose of the CMC Intended to ensure that the real issues betwee teh parties are identified and understood by the parties nad court. CMC will test parties on: - Suitability of case for settlement - Position reaches in litigation - Steps already taken by parties - Compliance with previous directions/ orders - Estimated costs of litigationa nd whether this is proportionate - Steps to be taken in the future

Question 23

Considerations at a CMC (a) Whether the claim is clear; (b) Whether any statements of case need to be amended; (c) What disclosure is required

Answer 23

if any; (d) What expert evidence is required

and how and when it should be obtained; (e) What factual evidence (eg witness statements) should be provided for; (f) Whether any further information is required; and (g) Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

Question 24

Who should attend the CMC? Any legal representative attending a CMC must be familiar with the case and have sufficient authority to deal with any issues likely to arise Any legal representative attending a CMC must be familiar with the case and have sufficient authority to deal with any issues likely to arise (like

Question 25

Procedure for multi-track cases

Question 26

Directions in multi-track cases Parties are under an express obligation to try to agree directions before any CMC. To satisfy overriding objective. If the parties have agreed all the directions required for the future management of the case and the court is satisfied of the appropriateness of the directions it may ‘vacate’ the CMC Otherwise

Answer 26

court will give directions

Question 27

Reqirements for a disclosure report Both parties must produce a disclosure report ahead of CMC (unless claim includes claim for personal injury). Under these provisions

Answer 27

not less than 14 days before the first CMC

each party must file and serve a report verified by a statement of truth

that: (a) Briefly describes what documents exist

or may exist

that are

or may be

relevant to the matters in issue in the case; (b) Describes where

and with whom

those documents are

or may be

located; (c) Describes how any electronic documents are stored; (d) Estimates the broad range of costs that could be involved in giving standard disclosure in the case

including the costs of searching for and disclosing any electronically stored documents; and (e) States which of the disclosure directions are to be sought.

Question 28

Case summaries and applications at CMC Parties are required to consider whether a case summary will be useful at the CMC. This is a short document of not more than 500 words

Answer 28

prepared by the claimant and (if possible) agreed with the other parties

designed to assist the court in understanding and dealing with the issues raised. It should contain: (a) A chronology of the claim; (b) Factual issues agreed and in dispute; and (c) The nature of the evidence needed to decide them.

Question 29

CMCs at other stages in the proceedings It is also possible to have a CMC later in the case

Answer 29

to assess how the case is progressing and perhaps to give further directions.

Question 30

Scope of the costs management regime This applies to all cases

Answer 30

except these : - Small and fast track claims - Claims commenced in or after April 2014 where claimed money >£10m - Claims commenced in or after April 2014 where money is not quantified

or claim is valued at >£10m - Claimsm commenced after April 2016 made by or on behalf of minor - Claims that are subject of fixed costs or scale costs But courts can also disapply regime even when it would apply automatically.

Question 31

Costs management procedure

Question 32

When to file costs budgets? Stated value of the claim is less than £50

Answer 32

000 = with DQ Any other case = 21 days before first CMC

Question 33

What is the costs budget? The budget relates to what a party might hope to recover from the other side. It must include a statement of truth. Claim less than paying solicitor usually.

Question 34

Preparing the costs budget Where the monetary value of the claim is less than £50

Answer 34

000 or if the party’s budgeted costs do not exceed £25

0

the parties must only use the first page of Precedent H Incurred costs

Question 35

Budget discussion reports Once the parties have filed and exchanged costs budgets

Answer 35

they are required to discuss budgets with each other in order to agree the costs figures where possible. The parties must file and exchange budget discussion reports (precedent R) no later than 7 days before the first CMC

Question 36

Costs management conference Court considers parties’ budgets and budget discussion reports. This either happens at the first CMC or court convenes a hearing solely for costs management. It may make a costs management order - approves the costs budget

Answer 36

indicating that they are reasonabe and proportionate. A fundamental principle is that party cannot recover a greater sum for costs from an opponent than it has in fact incurred Budget is a cap on what can be recordered If no CMO

then the position is less strict.

Question 37

If costs claimed and budget are different By more than 20%

Answer 37

then the receiving party must provide a statement of the reasons for the difference with the bill of costs

and the court may reduce the recoverable sum if the paying party reasonably relied on the budget.

Question 38

Revising costs budgets If significant developments in litigation warrant a revision

Answer 38

then: (a) An amended budget should be submitted to the other parties for agreement if possible = Precedent T (b) The amended budget then needs to be submitted to court for consideration.

Question 39

Failure to file a costs budget Party will be automatically treated as having filed a costs budget comprising of only the applicable court fees unless the court otherwise orders. This is draconian. Costs are likely to be much more than court fees.

Question 40

Sanctions Aim to ensure compliance with court rules and orders. Sanctions relate to: - Interest - Costs - Striking out a statement of case

Question 41

Court’s power to impose sanctions The court may either: • Impose a sanction immediately; or • Make an unless order. An unless order is an order which provides for an automatic sanction in the event of non-compliance with the order.

Question 42

Sanctions imposed by CPR Automatic sanctions - Failure to disclose an expert report prevents a party from using that report at trial - Failure to file a costs budget will be treated as filing a budget only of applicable fees

Question 43

Sanctions and time limits The time specified by a CPR or court order for a party to do any act may be varied by the written agreement of the parties

Answer 43

unless a rule or practice direction provides otherwise or the court orders otherwise But

when a rule

practice direction or court order – (a) Requires a party to do something within a specified time

and (b) Specifies the consequence for failure to comply

the time for doing the act may not be extended by agreement Except that they can agree an extension of time by prior written agreeent (before deadline) for a maximum of 28 days as long as it does not imperil a hearing date

Question 44

Relief from sanctions The rules on granting relief from sanctions for breach of rules or court orders encourage a strict approach. The application for relief must be supported by evidence. The Denton guidelines are that applications should be approached in 3 stages: 1. If the breach is neither serious nor significant

Answer 44

then relief should be granted - Did it imperil future hearing dates? - Disrupt litigation? 2. If the breach is serious or significant

consider why the default occurred. 3. Having considered the reason for the default

the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly

but with particular weight to be given to the requirements that (1)(a) litigation must be conducted efficiently and at proportionate cost and (1)(b) the court must enforce compliance with rules

practice directions and orders.

Question 45

In-time application Is where party realises it will not make deadline before deadline and applies for extension of time. NOT relief from sanctions

Question 46

Relief from sanctions and setting aside default judgment An application to set aside default judgment is treated as an application for relief from sanctions when the defendant is relying on the discretionary ground to set aside judgment in default