7. Case Management Flashcards
What does the CPR / overall objective provide for vulnerable parties and witnesses?
Overriding objective seeks to ensure parties are on equal footing
- potentially, remote evidence via video conference
- questioning them through an intermediary
4 Different Tracks
- Small Claims track
- Fast track
- Intermediate track
- multi-track
Who makes the track allocation decisions?
The court officer
When is the provisional track allocation decided?
When a defence is filed, court will (provisionally) determine which track is best suited
Once the court has allocated the case to a track, how is this communicated to the parties? What next step must the parties take?
Court serves notice on parties (of proposed allocation) and requires them to file and serve a completed directions questionnaire by a specific date.
Purpose of the Directions Questionnaire
- used to determine track (by court)
- assign case to a complexity band
- potentially determine directions for case management
Failure to file a directions questionnaire in County Court (Money Claims Court)
If the claim is for money in the County Court, the court will serve a notice on the defaulting party requiring compliance within seven days. Failure to do so results in the party’s statement of case being automatically struck out.
Failure to file directions questionnaire (Non-county court cases)
the court will make such order as it considers appropriate. This may include an order for directions, to strike out a statement of case or to list the matter for a case management conference.
Which track: Case with value of 10 000 or less
Small Claims Track
Which track: Claims valued between 10 000.01 and 25 000 inclusive
Fast track
Which track: Less complex claims, valued at more than 25 000 but not more than 100 000
Intermediate Track
Which track: The most complex claims, generally with a value of more than 100 000
Multi-track
Relevant factors (aside from value) when determining track
- Remedy sought
- complexity of facts, law and evidence
- number of parties
- value of any counterclaim
- amount of oral evidence
- importance to non-parties
- views and circumstances of parties
Factors NOT taken into account during track allocation:
- interest
- costs
- contributory negligence
- any sum not in dispute
Small Claims track: Personal Injury value
For personal injury (specifically road traffic cases occurring after 31 May 2021) value of damages claimed for pain, suffering and loss of amenity must not exceed 5 000
In which type of case might some of the CPR requirements not apply?
for small claims track cases (esp where individuals are representing themselves)
Intermediate Track: Constraints on parties, duration, and experts
to qualify for the intermediate track, the claim must involve a maximum of three parties, no more than 2 experts giving oral evidence on each side and an anticipated trial of three days maximum
Intermediate Track: will the court always hold a CMC?
Not necessarily, this is at the court’s discretion
Intermediate Track: timeline between giving directions and having a trial
Should be no longer than 30 weeks
Intermediate track: Must there always be a hearing to decide case directions?
No, not if the parties can agree directions without a hearing (court approves them without a hearing)
What do complexity bands consider?
claims will be assigned to a complexity band which will determine the amount of fixed recoverable costs.
How many complexity bands exist?
4 - these vary based on the track of the case
What should be brought to / filed before the first Case Management Conference?
- Case Summary prepared by the claimant (headed up as a statement of case)
- Timeline
- Issues of fact which are agreed
- Issues in dispute
- Evidence on which each party wants to rely should be added - Disclosure report prepared by both parties together on agreement
- identify documents and locations
- estimate of disclosure costs
- proposals for disclosure - Directions Questionnaire
- Budget breakdown and discussion report
- incurred costs and future costs
When is a costs management order made?
Usually at the first CMC
What is the purpose of a costs management order?
Records extent to which budgeted costs of future phases of litigation are agreed between the parties
- Any figures in dispute will be decided by the courts and court will give its approved number as it thinks appropriate
What happens in ‘pay as you go’ litigation?
At the end of an interim hearing, the court orders one party to pay the other’s costs
Alternative to ‘pay as you go’ litigation?
- Winner takes all (wait until end for costs order)
- Neither party can claim costs
If loser pays winner’s costs on a standard basis: two test for determining what these costs are / how much?
- Only costs which are reasonable and proportionate to incur are payable
- if payable, only in an amount which is reasonable and proportionate
- any benefit of the doubt here in favour of the party PAYING THE COSTS
If court orders that one party pays the other’s costs on the indemnity (penalty) basis: what are the two tests
- Only costs which are reasonable to incur are payable
- if payable, only in an amount which is reasonable
- Any benefit of the doubt which the court has as to the reasonableness is given to the party GETTING THE COSTS
Which cases are subject to cost management orders?
Multi-track cases (unless 10M+)
Filing Requirements for Costs Budget
Once drafted, signed and dated, parties must file the cost budget with the directions questionnaire for claims less than 50k
- All other claims, must be filed no later than 21 days before the first CMC
What is a budget discussion period and when must it be completed
After filing the costs budget, no later than 7 days before the CMC, parties must meet to complete the budget discussion period
- explains agreed points and points of dispute
Can a costs budget be changed / amended?
Technically, but its is VERY difficult (once it has been approved by the court)
- Require (1) agreement of other party or (2) to persuade court that there have been serious developments
What happens if a party fails to file a costs budget on time?
The party will be treated as having filed a costs budget consisting ONLY of court fees
- This is a sanction they can apply for relief from
If there is no costs management order, can the receiving party claim ALL costs they have incurred?
If there is a difference of 20% or more between the costs claimed and costs on budget, receiving party must provide a statement of the reasons for the difference
- court will decide if costs can be recovered
If there is a costs management order will the court ever depart from this when it comes time to assess costs?
No, not so long as the costs are assessed on the standard (usual) basis
If a court looks at the costs budget and believes them to be too high, what can they do?
Make a costs management order (if litigation cannot be conducted justly and at proportionate cost)
When does the ‘directions’ period run for claims on the fast track?
The direction periods run from the date of allocation rather than the date the claimant’s directions questionnaire is filed.
Fast Track: When are witness statements exchanged generally?
10 weeks from the date of allocation according to the typical timetable
If either party has been sanctioned early on in the proceedings (ie. failing to engage with ADR) when should they apply for relief from this sanction?
They should apply for relief from the sanction ASAP and this will usually be heard at the CMC provided it has been submitted in good time and there is enough time in the CMC to deal with it
When is the claim form deemed as served
on the second business day after the step required (here sending by first class post) has occurred
If more time is required to file and serve the defence - what should the defendant’s solicitor do?
the next step should be the defendant’s solicitor writing to request the claimant’s agreement to this. Before applying to the court, the parties should seek to resolve matters between themselves so as to comply with the overriding objective and to avoid the imposition of costs penalties. Only if that fails should an application be made
County Court claim allocated provisionally to fast track and defendant fails to file directions questionnaire: What will happen?
the court will serve a notice on the defendant requesting the filing of its Directions Questionnaire within seven days, failing which the defendant’s defence will be automatically struck out.
Multi-track: which timetables can be varied with agreement with the parties and which cannot?
CAN
- timetable for exchange of witness statements
UNLESS this means changing CMC, pre-trial review, return of pre-trial checklist or trial / trial period, because these cannot be varied by agreement
If a party does not comply with a court’s unless order, what will happen?
- Claim will be automatically struck out if unless order states this, or claimant may have to pay
- UNLESS the party applies for relief from sanction
The defendant fails to comply with standard directions repeatedly. The court issues an order stating that their defence will be struck out or dismissed unless they submit a witness statement in the next 7 days. 7 days elapses and nothing is filed. What should the claimant do?
Nothing - they do not need to apply as the claim will be struck out automatically
