Case and Costs Management

Question 1

What are the court’s general case management powers?

Answer 1

The court can make an order of its own initiative.

Examples:
- extend / shorten time for compliance with an rule, PD or court order
- adjourn hearings or bring them forward
- require a party or legal representative to attend court
- stay the whole or part of proceedings
- order any part to file and serve a costs budget

If the court does so, the parties have the right to apply to set aside, stay or vary the order (usually within 7 days)

Question 2

Court’s power to strike out

Answer 2

Strike out is the 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 or an abuse of process
- statements of case which do not amount to legally recognisable claims

Question 3

What are the grounds for strike out?

Answer 3

a) The statement of case discloses no reasonable ground for bringing or defending the claim
b) The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
c) There has been a failure to comply with a rule, PD or court order

Question 4

What are court sanctions and the court’s powers to impose sanctions?

Answer 4

• Interest: reducing the interest payable
• Costs (order for indemnity rather than standard basis)
• Striking out a statement of case

Court’s powers:
The court can impose sanctions by court order
- impose a sanction immediately; or
- make an unless order

Question 5

What is an unless order?

Answer 5

It provides for an automatic sanction in the event of non-compliance with the order

It must specify the date and time within which the act must be done

Question 6

What provisions in the CPR impose automatic sanctions for default?

Answer 6

• Failure to disclose an expert report prevents a party from using that report at trial
• Failure to file a costs budget is treated as only filing a costs budget of applicable court fees

Question 7

What is the general rule for sanctions and time limits?

Answer 7

The general rule is that a time specified by CPR / court order for a party to do an act may be varied by the written agreement of the parties, unless a rule or PD provides otherwise

Exception to the rule: where a rule, PD 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 between the parties

Question 8

For how long can parties agree an extension of time?

Answer 8

The parties can agree an extension of time by prior written agreement for a maximum of 28 days, provided this does not put at risk the hearing date

Question 9

What is the consequence of non-compliance with orders which impose sanctions?

Answer 9

If a party fails to comply with a rule, PD or court order, the sanction takes effect

Unless the party applies for and obtains relief from sanction

Question 10

What is test for relief from sanctions?

Answer 10

Dentons

1. Identify and assess the seriousness and significance of the failure to comply.
   - If breach not serious/significant - relief should be granted
   - test: whether it has imperilled future hearing dates or disrupted conduct of litigation
2. If the breach is serious/significant, consider why default occurred
3. Court evaluates all the circumstances of the case. The court gives particular regard to:
   a) litigation conducted efficiently and at proportionate cost
   b) compliance with rules, PD and orders

Question 11

What is an ‘in-time’ application

Answer 11

This is where a deadline is looming and a party realises it will not be able to comply with the deadline
- This is where an application for an extension of time is appropriate

Question 12

For what other application is Dentons applicable?

Answer 12

Application to set aside default judgment is treated as an application for relief from sanctions, when the defendant is relying on a discretionary ground

Question 13

What is allocation?

Answer 13

The court decides which ‘track’ the claim should be allocated to:
- small claims track
- fast track
- intermediate track
- multi-track

Question 14

What is the decision for allocation based on?

Answer 14

The decision is based primarily on the value of the claim.

When assessing the value of the claim, the court considers the value in dispute. It will disregard any claim for interest, costs, any amount not in dispute and contributory negligence

Question 15

What is the scope of the small claims track?

Answer 15

• Cases with a value of not more than £10,000
• Claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than £1,000

Personal injury claims – small claims track
* Small claims track is broadly the normal track for personal injury claims of not more than £10,000; and in addition
1. Road traffic claims where accident occurred before 31 May 2021, or claimant is a child or protected party, or claimant was riding a motorcycle, the damages for personal injuries (pain, suffering and loss of amenity) are valued at not more than £1,000
2. Other road traffic claims, damages of personal injuries are valued at not more than £5,000
3. Any other personal injury claim (not road traffic claims), the damages for the personal injuries are valued at not more than £1,500

Question 16

What is the scope for the fast track?

Answer 16

• Claims for up to £25,000
• Trial likely to last no more than one day
• Oral expert evidence from one expert per party in two expert fields max

Question 17

What is the scope for the intermediate track?

Answer 17

The normal track for claims up to £100,000
- Trial to last 3 days max
- Oral expert evidence limited to two experts per part

Question 18

What is the scope for the multi-track?

Answer 18

Everything else

Question 19

Process of allocation

Answer 19

• Defence is filed
• Court sends out the notice of proposed allocation, provisionally allocating the claim
• Parties file directions questionnaire
• If the claim has been provisionally allocated to the fast track, intermediate track or multi-track, the parties also file proposed directions
• The court allocates the claim to a track and serve a notice of allocation

Question 20

What happens if the claim is allocated to the small claims track or fast track?

Answer 20

The court will usually give directions

Question 21

What happens if the claim is allocated to the intermediate or multi-track?

Answer 21

The court will give directions or fix a case management conference at which directions are considered

Question 22

When is the court’s active management triggered?

Answer 22

When the defence is filed - this triggers the court to send notice of proposed allocation

• Following receipt of defence, the court officer provisionally decides the track and serves on the parties a notice of proposed allocation

Question 23

What is included in the directions questionnaire?

Answer 23

It provides information which enables the court to determine which track the case will be allocated to
- Form N180: small claims track
- Form N181: fast, intermediate, multi-track

Question 24

When should the parties file and serve a Directions Questionnaire?

Answer 24

No later than the date specified on the Notice of Proposed Allocation

Question 25

Matters included in the directions questionnaire

Answer 25

- Pre-action protocol: parties confirm compliance - Settlement: can request a stay of proceedings - Disclosure (stage where parties exchange documents) - Witnesses - Expert evidence - Trial - Costs budget - Directions - Other matters

Question 26

What are the other broader factors the court considers in allocation?

Answer 26

The court identifies the normal track (scope) Other considerations to decide if there is good reason to allocate to a track other than the normal track a) financial value b) nature of remedy c) likely complexity of facts, law, evidence d) number of parties e) value of counterclaim f) amount of oral evidence g) importance of claim to others h) views expressed by parties

Question 27

Categorisation of small claims track

Answer 27

- Fewer formalities - Very limited ability to recover costs from opponent - Abbreviated directions These features encourage litigants to represent themselves

Question 28

Fast track standard directions

Answer 28

- Disclosure - Exchange of witness statement - Expert reprots - Preparations for trial and trial (trial last max one day)

Question 29

What is the purpose of the CMC

Answer 29

To ensure that the real issues between the parties are identified and understood by the parties at court and see if they can be narrowed down before trial

Question 30

What does the CMC test the parties on?

Answer 30

Matters such as: - suitability of case for settlement - position parties have reached in litigation - steps parties have already taken - compliance with previous directions / orders - estimated costs of litigation and if this is proportionate - steps to be taken in future Issues being considered: 1. Whether the claim is clear 2. Whether statements of case need to be amended 3. What disclosure is required 4. What expert evidence is required 5. What factual evidence should be provided for 6. Whether any further information is required 7. Whether it will be just and save costs to order split trial or trial of one or more preliminary issue

Question 31

Overview of CMC procedure

Answer 31

Preparation for CMC: - Budget: 21 days before file budget - Disclosure report / electronic documents questionnaire / bundles: 14 days before first CMC - Draft directions / budget discussion report: 7 days before [any CMC] Then the CMC is held - Directions are the product of the CMC

Question 32

How should parties try to agree directions before any CMC

Answer 32

The parties are under an obligation to try to agree directions before any CMC - Agreed directions have to be submitted to the court at least 7 days before any CMC If the parties have agreed all directions for future management and the court is satisfied with them - the court may cancel the CMC - If the parties cannot agree directions, the CMC is used for the court to give directions

Question 33

What is the requirement for a disclosure report (Form N263)?

Answer 33

Both parties must produce a disclosure report which: a) briefly describes what documents exist that are or may be relevant to matters in issue b) describes where and with whom those documents are c) describes how many electronic documents are stored d) estimates broad range of costs e) which of the disclosure directions are to be sought Report is verified by statement of truth Must be filed and served not less than 14 days before first CMC

Question 34

For which court is a disclosure report required?

Answer 34

For the multi-track - Not necessary to file disclosure report for case allocated to intermediate track

Question 35

What is the purpose of a costs management conference?

Answer 35

- In accordance with the overriding objective, claims should be dealt with justly and at proportionate cost - Costs are proportionate if they are reasonable to the sums in issue - Costs management regime aims to address: 1. Limited information when making case management directions, through receiving parties' budgets 2. uncertainty about what the court considers disproportionate costs At case management, the parties exchange budgets, the court indicates what would be proportionate and gives directions based on costs

Question 36

Scope of costs regime

Answer 36

It applies to multi-track cases

Question 37

Overview of costs management regime

Answer 37

1. Budgets (filed/exchanged 21 days before first CMC) 2. Budget discussion report (filed/exchanged 7 days before first CMC) 3. Case / Costs management conference 4. Directions Order / Costs Management Order

Question 38

Preparing costs budget

Answer 38

- Prescribed form for costs budget: Precedent H - Must be signed with its own for of statement of truth - Budgeting is about future costs - General rule is that a party will only recover budgeted costs

Question 39

What do the parties need to do if a party needs an extension to file and serve its budget?

Answer 39

Parties can agree to extend a deadline by up to 28 days, provided this does not put the hearing date at risk

Question 40

Budget discussion reports

Answer 40

Once the parties have filed and exchanged costs budgets, they must discuss their budgets and agree costs where possible - This is done no later than 7 days before first CMC Budget discussion report indicates: a) figures which are agreed and not agreed b) brief summary of grounds of dispute

Question 41

When does the costs management conference take place?

Answer 41

At the first case management conference

Question 42

What are the consequences of the costs management conference

Answer 42

1. The court has regard to available budgets / costs when making case management decisions 2. The court can at any time make a costs management order. It will consider whether the budget costs falls within the range of reasonable and proportionate costs

Question 43

What is the consequence if a party fails to file its budget on time?

Answer 43

The party is treated as having filed a budget of only applicable court fees - severe sanction

Question 44

Revising a costs budget

Answer 44

If significant developments in litigation mean a revision to a party's budget is warranted, then: 1. an amended budget should be submitted to other parties for agreement 2. the amended budget needs to be submitted to court The court may allow revisions based on significant developments in litigation, but not for inaccuracies in budgeting

Question 45

Where a costs management order is made and costs are awarded on the standard basis the court will -

Answer 45

- have regard to the receiving party's last approved/agreed budget... and - not depart unless satisfied that there is good reason to Where no CMO is made, budgets can still be taken into account

Question 46

What is a costs management order?

Answer 46

For figures in the budget discussion report which are not agreed, the court will set these figures. A costs management order sets the figures for costs for each party, for each stage of the proceedings When the court assess costs at the conclusion of the matter, the court does not allow the party to recover more than in the budget, unless there is good reason to do so

Question 47

What happens if the parties agreed figures in the budget discussion report?

Answer 47

The court will not change them, it just records the agreement

Question 48

What are the limitations to the court's involvement in costs

Answer 48

It cannot control the costs between a litigant and their solicitor