Case and costs management Flashcards
What is case management?
The giving of directions and management of a case is called case management
Costs are proportionate if they bear a reasonable relationship to
- Sums in proceedings
- Value of any non-monetary relief in proceedings
Complexity of litigation
Additional work generated by conduct of paying party
Any wider factors in proceedings such as reputation or public importance
Courts take into account complexity, requiring expert evidence and level of damages sought.
AT THE CASE MANAGMENT STAGE THE COURTS WILL CONSIDER WHETHER THEY NEED TO INTERVENE TO LIMIT THE VOLUME OF DOCUMENTS. SO PROPORTIONALITY IS CONSIDERED AT THIS STAGE.
Courts power to strike out?
Courts power to strike out
- Deletion of written material from a statement of case so that it cannot be relied on in proceedings by any party. Designed to target cases that are inadequately drafted.
o Court can do this on own initiative
o On application of a party
o Used quite sparingly
- The statement of case discloses no reasonable ground for bringing or defending the claim
- The statement is an abuse of courts process
- There has been a failure to comply with a rule, practice, direction or court order.
Judgement after strike out
- Where the court makes an order which includes a term that the statement of case of a party will be struck out if the party does not comply with the order. – and party does not comply – the other party can obtain judgement with costs by filing a simple request at court
Allocation to track?
Small claim tracks
- Normal tracks for cases with a value of not more than 10,000 and also claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than 1000.
- Fast track
- Normal track up to 25,000
- Trial is likely to last no langer than one day
- There will be oral expert evidence from one expert per party in each of no more than two expert fields
Multi track
- Normal track for all other cases
Scope of small tracks – personal injury claims
- If not more than 10,000 and in addition
- In relation to a road traffic claim – where accident occurred before 31st may 2021 – the claimant is a child or protected party or claimant was riding a motorcycle the damages for injury no more than 1000.
- Other road traffic accidents = personal injury no more than 5000
- In other personal injury NOT ROAD TRAFFIC – not more than 1500
Order of proceedings?
Defence is filed
Court sends out notice of proposed allocation
Parties file directions questionnaire
If claim has been provisionally allocated to fast track or multi track - the parties ASLO file proposed directions.
When parties file directions questionnaire - contents?
o Pre-action protocol
o Parties must confirm in the DQ whether they have complied with pre-action protocols. If there is no specific pre-action protocol then parties must be expected to comply with practice direction.
o Settlement – there is a section for parties to request that the court stay proceedings so parties can try to settle. If both parties request it – can be stayed for 6 months.
o Otherwise, court can stay it if it considers appropriate
o Disclosure – DQ also asks parties to provide a lot of case management information as to future preparation of case for trial.
o Each party also required to name the witness that it would like to call to trial and detail what it hopes they will help that party to prove.
o Expert evidence – in a civil claim judge often have to consider not just legal but technical. Must get courts permission
o Trial – estimate time needed for trial
o Costs – in multi-track cases fall within automatic costs management – parties will NEED to file a costs budget with the DQ. This is part of the costs management regime.
o Directions – also require parties to attempt to agree directions and to attach them
On fast track or multi track file proposed direction
- For claims under costs management regime – file and serve a costs budget and an agreed budget discussion report
Once all documents specified including DQ is filed – court will allocate the claim to a track. Send a notice of decision along with a copy of DQs.
Small claims track
- Very limited costs recovery
- Fewer formalities – CPR rules do not apply to cases allocated to small claims track and hearings on small claims track are informal
Standard abbreviated directions include?
- Parties to file ands serve on every other party copy of documents they intent to rely upon no longer than 14 days before the main hearing.
- Original documents to be brought to the hearing.
- Notice of the hearing date – at least 21 days’ notice will usually be given
- That the court must be informed if by agreement between parties the case settles.
Fast track?
Fast track
USUALLY HELD IN COUNTY COURT AND SHOULD LAST NO LONGER THAN ONE DAY.
Standard directions
Disclosure – within 4 weeks of notice of allocation
Exchange of witness statement – within 10 weeks
Exchange of expert reports – within 14 weeks of notice of allocation
Filing pre-trial checklist at court – 22 weeks within notice of allocation
Trial date – within 30 weeks of notice of allocation
Case management on multi-track?
Next steps after its allocated to multi track are
- Court giving directions rather than just basing it off written forms may list hearing – CASE MANAGMENET CONFERENCE
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.
- If such a legal representative does not attend and the CMC is postponed as a consequence it is likely to result in a wasted costs order.
Procedure for multi-track?
- Directions in multi-track cases - parties are under an express obligation to try and agree directions before any CMC.
- If directions are agreed – may vacate the CMC – cancel it
Requirement for a disclosure report
- In multi-track cases both parties must produce a disclosure report in readiness for the CMC unless CLAIM IS PERSONAL INJURY – not less than 14 days before the first CMC and serve a report verified by a statement of truth that
- Briefly describes what documents exist or may exists
- Describe where and with whom those documents may be located
- Describes how any electronic documents are stores.
- Estimates broad range of costs of giving standard disclosure.
- States which of the disclosure directions are to be sought
summaries and applications
- Parties are required to consider whether a case summary will be useful at CMC
- This is a short document of not more than 500 words, prepared by claimant and agreed with other parties designed to assist the court in understanding and dealing with issues raised
CMC deadlines?
Budget - NOT LATER THAN 21 DAYS BEFORE FIRST CMC
- estimate of future costs – also includes costs so far
- Each party receives each other
- Decide whether its proportionate then discuss it with the other wise
- And put it in a budget discussion report detailing what parts of budget report agree with and what parts don’t agree with.
DISCOLSURE REPRORT - NOT LESS THAN 14 DAYS BEFORE FIRST CMC
DRAFT DIRECTIONS - NO LATER THAN 7 DAYS BEFORE FIRST CMC
BUDGET DISCUSSION REPORT - NO LATER THAN 7 DAYS BEFORE FIRST CMC
PRODUCT OF CMC - DIRECTIONS AND COSTS MANAGMENET ORDER.
Failing to make a budget on time?
Failing to file a budget on time
- Sanction automatically only compiled of court fees
Court may allow revisions in significant issues
When you think there is a risk of not making the budget.
You should ask the other party to agree a deadline for serving budgets be extended. Parties can agree ti extend such a deadline up to 28 days provided that any such extension does not put any hearing at risk.
Can apple to court but obtaining other parties consent is much less costly.
Costs main principle?
o General rule – unsuccessful party will be ordered to pay costs of successful party CPR 44.2(2)
o Discretion – court takes into account a range of factors including conduct of parties and whether a party has successfully proven all of its case or only part
o Limit on recovery – only a reasonable and proportionate
- Court has full power to determine by whom and to what extend costs of proceedings are to be paid
- Can consider at end of any interim hearing
Different types of litigation costs - Solicitor – client costs - primarily solicitors fees
- Inter party costs – actual figure of cost awarded by court
- Non-party costs – can require a person who is not a party to proceedings to pay something towards costs
- Likely situation where there is a funder
General rule - Costs follow the event
- But discretion taking into account conduct of parties whether it’s succeeded on all parts or only some.
Two basis of assessment for costs?
Standard basis
- Court will allow costs
- Have been proportionately and reasonably incurred
- Are proportionate and reasonable in amount
- Any doubt in favour of paying party
- Only 60% to be recovered usually
Indemnity basis
- Court will allow costs which
- Have been reasonably incurred and
- Are reasonable in amount
- Any doubt resolved in favour of receiving party
- 70/80% of its legal costs from paying party
Costs procedure? Fixed costs?
Fixed costs
- Generally, apply to
- Uncontested disputes
- Enforcement proceedings
- Small claims
- IT APPLIES UNLESS COURT ORDERS OTHERWISE
