4. Case Management and Disclosure of Documents

Question 1

What is the overriding objective of case management?

Answer 1

To enable the court to deal with cases justly and at proportionate cost

Question 2

What are the 6 further objectives a court should seek to achieve when dealing with cases?

Answer 2

1. Ensure parties on equal footing
2. Saving expenses
3. Dealing with cases in a way proportionate to money involved/ importance/ complexity/ financial position of each party
4. Ensure case is dealt with fast and fair
5. Allotting appropriate amount of court’s resources
6. Enforcing compliance with rules, practice and directions

Question 3

What is a provisional allocation?

Answer 3

Court decide which track appears most appropriate and serve notice on parties of proposed allocation

Parties then required to file and serve a completed directions questionnaire by a specific date

Question 4

If a claim is provisionally allocated to a multi-track, what else should the parties prepare?

Answer 4

Case summary
Disclosure report
Costs budget and budget discussion report

Question 5

What are the A to J parts of a directions questionnaire?

Answer 5

A - Settlement (solicitor must confirm that have explained to client the need to try settle)
B - Court (why a particular one)
C - Pre-action protocols (whether parties have complied)
D - Case management information
E - Experts (whether SJE is appropriate and if not then evidence they wish to rely on)
F - Witnesses
G - Trial (expected duration)
H - Costs
I - Other information
J - Directions (parties must attempt to agree directions and draft order must accompany questionnaire: usually standard directions for fast track; multi-track draft directions usually based on specimen directions available on MoJ website)

Question 6

What happens if a party fails to file their directions questionnaire?

Answer 6

If a claim for money in county court = court serve notice requiring compliance within 7 days, and failure to do so leads to party’s statement of case being struck out

All other cases = case management order at court’s discretion

Question 7

What financial value claims are usually allocated to the small track?

Answer 7

£10,000 or less
Or under £5,000 if a PI claim following road traffic accident

Question 8

What financial value claims are usually allocated to the fast track?

Answer 8

Over £10,000 to £25,000

Question 9

What financial value claims are usually allocated to the multi-track?

Answer 9

Over £25,000

Question 10

What other factors are taken into account in track allocation asides from value?

Answer 10

o Remedy sought
o Complexity of facts, law and evidence - e.g. a case involving disputed allegation of dishonesty will not usually be suitable for the small claims track
o Number of parties
o Value of any counterclaim – if higher, this would be the value considered for the financial allocation (not the sum of the claim and the counterclaim together)
o Amount of oral evidence
o Importance to non-parties
o Views and circumstances of parties

Question 11

When identifying value of a dispute, what is disregarded?

Answer 11

Interest
Costs
Contributory negligence
Any sum not in dispute

Question 12

What are typical directions for small claims track?

Answer 12

Each party delivering to the other copies of all documents on which they intend to rely

Requirement for them to bring original documents to hearing

Parties not being allowed to rely on expert’s report without express permission from court

Question 13

What length trial is suitable for fast track?

Answer 13

No more than 1 day

Question 14

What restrictions are there on oral evidence at trial for fast track matters?

Answer 14

1 expert per party in relation to any expert field

Expert evidence in two expert fields only

Question 15

Can the timetable issued by the court with standard directions be altered by the parties?

Answer 15

Yes if they agree in writing EXCEPT for trial date / returning of pre-trial checklists / date of CMC

Question 16

If the parties wish to amend the timetable for either the trial date, returning of pre-trial checklists or date of CMC, how can this be done?

Answer 16

Application made to the court with explanation as to why this is necessary

Question 17

In a typical timetable for case preparation of a case allocated to the fast track, when is the exchange of witness statements?

Answer 17

10 weeks from date of allocation

Question 18

What is a case management conference?

Answer 18

Used in multi-track cases - meeting between parties and judge in which judge ensures that the appropriate directions relating to the management of the case are given

Question 19

What documents must be prepared for a CMC?

Answer 19

Directions questionnaire
Case summary
Disclosure report
Costs budget
Budget discussion report
Draft order

Question 20

What is a case summary?

Answer 20

Effectively updated case analysis setting out brief chronology of claim, agreed and disputed factual issues and evidence needed to decide them

Question 21

Can a court give each party a different timetable to trial?

Answer 21

Yes

Question 22

What is the outcome if parties fail to keep to the timetable provided by the court?

Answer 22

Not an issue as long as they are cooperating and key dates such as trial or CMC aren’t missed

Question 23

What value claims are excluded from cost management requirements?

Answer 23

£10 million and over

Question 24

Who must sign a cost budget’s statement of truth?

Answer 24

Senior legal representative of the party

Question 25

What types of costs are included in a costs budget?

Answer 25

Breakdown of costs and disbursements already incurred (incurred costs)

Estimate of future costs and assumptions on which those are based (budgeted costs)

Question 26

Can a court approve or revise any incurred costs of a party’s budget?

Answer 26

No, but can record on the face of any case management order any comments about incurred costs to be taken into account

Question 27

When must a costs budget be filed?

Answer 27

Claims under £50,000 = with directions questionnaire

Claims over £50,000 = no later than 21 days before first CMC

Question 28

What is the sanction available to the court under CPR r 3.4 and when would it be used?

Answer 28

Gives court power of striking out a party’s case so their claim or defence comes to an immediate halt

Two most common scenarios for use:
1. The statement of case discloses no reasonable grounds for bringing or defending the claim
2. There has been a failure to comply with a rule, practice direction or court order

Question 29

What is the automatic sanction imposed for failure to file a costs budget?

Answer 29

Party is treated as having filed a budget consisting of court fees only

Question 30

What can a party do if they receive the automatic sanction for failing to file their costs budget on time?

Answer 30

Apply for relief from this sanction under r 3.9

Question 31

What must a party do when they wish to revise a costs budget?

Answer 31

Submit a budget variation summary sheet to the other party for their agreement

Then file at court once other party has responded, to allow the court to decide whether to approve, vary or disapprove the revision

Question 32

What is a budget discussion report and when is it relevant?

Answer 32

Report highlighting agreed and disagreed costs in multi-track cases, which must be filed no later than 7 days before the CMC

Question 33

What can a court do if they think a party’s budgeted costs are too high?

Answer 33

Make a costs management order

Question 34

Are parties able to revise their costs budget?

Answer 34

Only if are able to persuade the court there has been significant unanticipated developments since budget was filed

Question 35

What are the requirements and consideration for when a party is applying for relief from a court imposed sanction?

Answer 35

Must apply promptly and provide evidence, and court will consider as per Denton v TH White:

1. Identify and assess seriousness or significance of breach
2. Consider why it occurs
3. Evaluate all circumstances including whether trial date could still be met, effect of failure etc

Question 36

What has been the impact of Denton v TH White on a party’s ability to apply for relief from court impose sanctions?

Answer 36

Has made the approach much stricter therefore making sanctions have more gravity

Question 37

What constitutes a document for disclosure purposes?

Answer 37

Paper / digital documents
Videos
Inscriptions

Question 38

When is standard disclosure usually ordered?

Answer 38

Fast track (and sometimes multi-track)

Question 39

What is standard disclosure?

Answer 39

Requires parties to disclose:
o Documents on which they rely, and
o Documents which adversely affect their own case / another party’s case / support another party’s case

Question 40

On the multi-track, when must parties complete a disclosure report and what is its purpose?

Answer 40

No less than 14 days before first CMC

Contains party’s requirements for disclosure

Question 41

What happens after parties on the multi-track have filed their disclosure report?

Answer 41

Not less than 7 days before CMC, parties must discuss and seek to agree a proposal for disclosure that meets the overriding objective

Question 42

What is the duty to search?

Answer 42

All parties to the proceedings are subject to a duty to search for documents

Question 43

What is the scope of the duty to search?

Answer 43

All parties must make reasonable and proportionate efforts to search for all documents which adversely affect their own case / another party’s case / support another party’s case

Question 44

What limitations may be imposed on the duty to search?

Answer 44

Not searching for documents that came into existence before a particular date

Specifying a particular place or places searched

Limiting categories of documents

Question 45

How is disclosure made?

Answer 45

1. Formalities
2. Disclosure statement
3. List of three parts
   Part 1 - documents within party’s control which they do not object to other party inspecting
   Part 2 - documents in party’s control with objection to inspect
   Part 3 - documents not privileged from inspection but no longer in party’s control

Question 46

What is contained in the disclosure statement and who can sign it?

Answer 46

Confirmation of extent of search made to locate any documents

Explanation for reasons for not permitting inspection of some categories (i.e. limiting search)

MUST be signed by individual responsible for overseeing disclosure process (i.e. NOT legal representative)

Question 47

What kinds of documents can be contained in Part 2 of the disclosure list (i.e. objection to inspect)?

Answer 47

Documents subject to either legal advice privilege or litigation privilege

Question 48

What kinds of documents are protected by legal advice privilege?

Answer 48

Between lawyer / legal advisor and client

Sole or dominant purpose of obtaining legal advice

Question 49

What kinds of documents are protected by litigation privilege?

Answer 49

Must be a communication, passing between client or lawyer and third party

Came into existence when litigation was contemplated or ongoing AND

Produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in litigation

Question 50

Can privilege be waived in relation to disclosure?

Answer 50

Yes, but only by the client

Question 51

Can without prejudice correspondence be part of standard disclosure?

Answer 51

Yes - judge will not see things which are part of disclosure and the purpose of without prejudice is that the judge will not see it

Question 52

What could a court order in specific disclosure?

Answer 52

More extensive search

Disclose any further documents located as a result of that search

Disclose specific documents that the party would have expected to see

Question 53

What will the court consider when deciding whether to grant an order for specific disclosure against a party?

Answer 53

Will take into account all the circumstances of the case and in particular the overriding objective - if the court concludes that the party failed adequately to comply with the obligations imposed by an order for disclosure, the court will usually make such order as is necessary to ensure that those obligations are properly complied with

Question 54

Can a party apply for disclosure against a non-party?

Answer 54

Yes but only with court’s permission