Case And Costs Managements Flashcards
what is the scope for a small claims track? (CPR 27)
this is the normal track for cases with the value of not more than £10,000 and also claims by a Tennant of residential premises against the landlord for repairs where neither the repairs nor any claim for damages total more than £1,000. there are special rules for personal injury claims
what are the special rules for a personal injury claim for allocation to the small track?
Broadly, the small claims track is the normal track for a personal injury claim if the value of the claim is not more than £10,000 (as with other claims); AND IN ADDITION
- in relation to road traffic claims where the accident occurred before 31 May 2021, or the claimant is a child or protected party, or the claimant was riding a motorcycle, the damages for the personal injuries (pain, suffering and loss of amenity) are valued at not more than £1,000;
- in relation to other road traffic claims, the damages for the personal injuries are valued at not more than £5,000;
- in any other personal injury claim (not road traffic claims), the damages for the personal injuries are valued at not more than £1,500.
Scope for the allocation to the fast track (CPR 28)
the fast track is the normal track (other than those which the small claims track is the normal track) up to £25,000. provided that:
- the trial is not expected to last longer than a day (5 hours); and
- there will only be oral evidence form one expert per party in each of no more than two expert fields. (CPR 26.6(4) and (5))
scope for allocation to the Multi-track (CPR 29)
the multi-track is the normal track for all other types of cases (CPRM 26.6(6))
what are the three tracks which a case can be allocated to?
- small claims
- fast track
- multi-track
when will the court allocate the claim to a track?
- when all parties have filed their Directions Questionnaires (DQs); or
- when the court is giving directions
what may the court do before deciding which track to allocate the claim?
the court may consider it needs more information in order to allocate, therefore it may order a party to provide further information about the case or hold an allocation hearing (CPR 26.5(3) and (4)). Allocation hearings are quite rare.
what is the general rule for allocation of track?
(1) the court will have regard to the matters relevant to the allocation of the track (CPR 26.8)
(2) The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to the relevant matters mentioned
(3) The court will not allocate a claim to the small claims track, if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction.
what are the matters which are relevant to the court deciding which track to allocate the claim?
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 Part 20 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.
when the court is assessing the financial value of the claim for the allocation to track, what factors must the court disregard?
(a) any amount not in dispute;
(b) any claim for interest;
(c) costs; and
(d) any contributory negligence.
when will the court consider the claim of each claimant separately when assessing the financial value of the claim for the allocation of track?
(a) if two or more claimants have started a claim against the same defendant using the same claim form; and
(b) each claimant has a claim against the defendant separate from the other claimants,
notice for allocation of track
Once the court has made an allocation decision, it will send a notice of allocation to the parties together with a copy of the DQs
can there be a re-allocation of track?
the court may subsequently re-allocate a claim to a different track, this can be where there is a change of circumstances so it is just to do so
the meaning of “the financial value of the claim” when allocating to a track.
It is for the court to assess the financial value of a claim.
Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may make an order directing the claimant to justify the amount.
In deciding whether an amount is in dispute the court will apply the following general principles—
(1)Any amount for which the defendant does not admit liability is in dispute,
(2)Any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute,
(3)Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute,
(4)Any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.
when allocating a claim to a track, what is the meaning of the factor “the views expressed by the parties”?
The court will treat these views as an important factor, but the allocation decision is one for the court, to be taken in the light of all the circumstances, and the court will not be bound by any agreement or common view of the parties.
when allocating a claim to a track, what is the meaning of the factor “the value of any counterclaim or part 20 claim”?
Where the case involves more than one money claim (for example where there is a Part 20 claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead it will generally regard the largest of them as determining the financial value of the claims.
what in particular will the court take into consideration for allocation on the fast track 26 PD para 9
- The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day.
- When it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard.
- The court will also take into account the case management directions (including the fixing of a trial timetable) that are likely to be given and the court’s powers to control evidence and to limit cross-examination.
- The possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track.
- A claim may be allocated to the fast track or ordered to remain on that track although there is to be a split trial.
- Where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track.
can a party request a re-allocation of track?
(1)Where a party is dissatisfied with an order made allocating the claim to a track they may appeal or apply to the court to re-allocate the claim.
(2)they should appeal if the order was made at a hearing at which he was present or represented, or of which he was given due notice.
(3)In any other case they should apply to the court to re-allocate the claim.
variation of time limits by parties. CPR 2.11
Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.
what are the courts general powers of management?
- extend or shorten the time for compliance with any rule, practice direction or court order.
- adjourn or bring forward a hearing;
- require that any proceedings in the High Court be heard by a Divisional Court of the High Court;
- require a party or a party’s legal representative to attend the court;
- hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
- direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
- stay the whole or part of any proceedings or judgment either generally or until a specified date or event;
- consolidate proceedings;
- try two or more claims on the same occasion;
- direct a separate trial of any issue;
- decide the order in which issues are to be tried;
- exclude an issue from consideration;
- dismiss or give judgment on a claim after a decision on a preliminary issue;
- order any party to file and exchange a costs budget;
- take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
when the court makes a case management order, it may —
- make it subject to conditions, including a condition to pay a sum of money into court; and
- specify the consequence of failure to comply with the order or a condition.
When the court gives directions, will take into account whether or not a party has complied with the Practice Direction?
Yes.
what order may the court make if a party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.
The court may order a party to pay a sum of money into court
having regard to:
(a) the amount in dispute; and
(b) the costs which the parties have incurred or which they may incur.
the money shall be security for any sum payable by that party to any other party in the proceedings.
may the court make contact the parties from time to time in order to monitor compliance with directions?
Yes. Additionally, the parties must respond promptly to any such enquiries from the court.
Case management for unrepresented party
- When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented.
- The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.
- Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the case.
Where the court proposes to make an order of its own initiative, what can it allow a party to do?
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
the Court may make an order on its own initiative without allowing a hearing.
how long a notice MUST a court give to parties where it proposes to make a case management order of its own initiative and to hold a hearing to decide whether to make an order?
at least 3 days before the hearing
when the court has made an order of its own initiative and without a hearing what can a party to proceedings do?
- a party affected by the order MAY apply to have it set aside, varied or stayed; and
- the order MUST contain a statement of the right to make such an application.
when a party affected by the order applies to have it set aside, varied or stayed, the application must be made when?
- within such period as may be specified by the court; or
- if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.
when does the courts power to make a judgment without trial after a strike out apply?
This rule applies where—
- the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and
- the party against whom the order was made does not comply with it.
what is the genernal power of the court to rectify matters where there has been an error of procedure?
Where there has been an error of procedure such as a failure to comply with a rule or practice direction—
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
The costs regime applies to all cases except the following cases (CPR 3.12):
- Small claims track or fast track claims.
- Claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more.
- Claims commenced on or after 22 April 2014 which are for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10 million or more.
- Claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18.
- Claims that are the subject of fixed costs or scale costs.
what is a costs budget?
An estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.
what must the statement of truth read at the of a costs budget read?
This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation
who must file and exchange costs budgets and when must this be done?
Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets—
(a) where the stated value of the claim on the claim form is less than £50,000, with their directions questionnaires; or
(b) in any other case, not later than 21 days before the first case management conference.
when this is done, all other parties, not being litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference.
what may the court do on its own initiative for a costs budget?
The court—
(a) may, on its own initiative or on application, order the parties to file and exchange costs budgets in a case where the parties are not otherwise required by this Section to do so;
(b) shall (other than in an exceptional case) make an order to file and exchange costs budgets if all parties consent to an application for such an order.
what does a costs budget need to contain?
Every budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.
despite litigants in person not having to file and exchange a costs budget, what must the other parties do?
Even though a litigant in person is not required to prepare a budget, each other party (other than a litigant in person) must provide the litigant in person with a copy of that party’s budget.
what is the sanction for failing to file a costs budget?
Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.
what are costs management orders
The court may, at any time, make a costs management order (‘CMO’).
The court will consider whether the budgeted costs fall within the range of reasonable and proportionate costs, and then the CMO will:
- Record the extent to which the costs budgets are agreed between the parties. Agreed figures cannot be changed by the court.
- Where the figures are not agreed, “record the court’s approval of a costs budget, after making appropriate revisions”.
If a costs management order has been made…
…the court will thereafter control the parties’ budgets in respect of recoverable costs.
Whether or not the court makes a costs management order, the court may…
…record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings.
May the court set a timetable or give other directions for future reviews of budgets?
Yes.
After a party’s budgeted costs have been approved or agreed, the party must re-file and re-serve the budget—
(a) in the form approved or agreed with re-cast figures; and
(b) annexed to the order approving the budgeted costs or recording the parties’ agreement.
when must a party revise/vary costs budget
A party (“the revising party”) must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions.
