Case management Flashcards
If a court makes an order of its own initiative without a hearing/opportuntiy for parties to make representations, what must it do?
Allow the parties a right to set aside, stay or vary order within given period (= 7 days from date order served on applicant if no specified period)
What is a strike out? What cases will it target?
- A deletion of written material from a SOC so that it cannot be relied on in proceedings by any party
- Targets cases inadequately drafted/are an abuse of process
Can be deletion of entirement of SOC = case effectively over
NB different to:
- Default judgement = procedural; consequence of failing to respond to claim
- Summary judgement = no real prospect of success
Must the court wait for an application of.a party to strike out whole/part of SOC?
No - can make on application of party of of its own initiative
Used sparingly
What are the 3 grounds for strike out?
No _____ , abuse of ____ , failure _______
- The SOC discloses no reasonable ground for bringing/defending a claim (e.g. denies claim with no reasons)
- SOC is an abuse of court’s process or otherwise likely to obstruct just disposal of proceedings
- There has been a failure to comply with a rule, PD or court order (e.g. late service and exchange of documents)
What makes an ‘abuse of process’ and what claims will ‘obstruct just disposal’?
- Abuse of process = using process for purpose significantly different from ordinary and proper use e.g. commencing claim with no intention to take case further
- Obstructing just disposal inc claims vexatiously or obviously ill-founded
A statement of case which discloses no reasonable ground may also be an abuse of the court’s process; there is no exact dividing line between ground (a) and ground (b).
If there has been a failure to comply with a rule or direction, will a court automatically strike out even if a fair hearing is still possible?
Striking out unlikely - more likely to make an order imposing a lesser sanction for non-compliance
Where a SOC is struck out because a party has not complied with an order including a term that SOC will be struck out if party does not comply with it, what can the other party generally obtain?
Judgement with costs by filing a simple request at court (application rarely required)
What can sanctions relate to?
3 things sanctions can be
- Interests e.g. reducing amount payable to C
- Costs e.g. ordering D to pay costs on indemnity not standard
- Striking out SOC
Non-exhaustive
What is an unless order? What must it specify?
alternative to imposing an immediate sanction
Provides for automatic sanction in event of non-compliance with order - must specify date and time within which act must be done
E.g. ‘unless the defendant serves its list of documents at or before [time and date] its defence will be struck out and judgement entered for the claimant’.
When will automatic sanctions be imposed by default?
When they are by CPR provisions e.g. failure to disclose expert report prevents a party using that report at trial
What is the general rule on varying time limits specified by the CPR or a court order to do an act?
Time specified to do any act may be varied by written agreement of the parties unless CPR/court orders otherwise (e.g. varying date for CMCs)
Where a rule/PD/court order requires party to do something in specified time and specifies consequences for failure to comply, what is the exception to the general rule that parties can vary time limits by written agreement of the parties (unless rule/PD/court says otherwise)?
Time cannot be extended by agreement between parties unless parties agree extension of time by prior written agreement for max of 28 days as long as it does not put hearing at risk
Again - subject to court ordering otherwise
Will a saction always take effect where a party fails to comply with a rule, PD or court order imposing it?
Yes - unless it applies and obtains relief from sanction
What do rules expressly require the courts to consider the need for re relief from sanctions?
The need…
- For litigation to be conducted efficiently and at proportionate cost
- To enforce compliance with rules, PDs and orders
What must an application for relief from sanction be supported by?
Evidence
What are the 3 stages when approaching an application for relief from sanctions from Denton?
- If breach neither serious nor significant = relief should be granted
- If breach is serious or significant = consider why default occurred, and having done so…
- Court should evaluate all circumstances of the case
When assessing the serious/significance of failure to comply with the rule/order at stage 1, what is a useful test? Will the general conduct of the parties be assessed?
- Useful test = whether it has imperilled future hearing dates/disrupted conduct of litigation/impacted C’s ability to put forward case
- Assessment should not involve general conduct of parties (left to 3rd stage)
E.g.
Denton - serving 6 further witness statements after parties initially served 18 months ago meaning trial was adjourned = significant and serious breach as trial date had to be vacated and no good reason for breach
Decadent vapours - C failed to pay court fees on time because cheque delayed in post = breach near bottom of range in seriousness and did not cause problems to efficient conduct of litigation at proportionate cost
Utilise TDS - C filed cost budget 45 mins late and was 13 days late in notifying court of outcome of settlement negotiations = delay in filing budget not serious/significant and did not imperil future hearing date/conduct of litigation
What requirements should be particularly considered when evaluating all circumstances of the case at stage 3?
- Conducting litigation justly and at proportionate costs
- Enforcing compliance with rules, PDs and orders
What is the difference between a relief from sanctions and in-time applications?
- Relief from sanctions = apply where deadline has passed and application made after deadline
- In-time application = where deadline looming and party realises it is not going to be able to comply with deadline (E.g. application for extension of time to take any particular step in litigation is not an application for relief from sanctions provided applicant files application before expiry of permitted time period)
Will an application to set aside a default judgement be treated as an application for relief from sanctions?
Yes where D is relying on discretionary ground to set aside judgement in default
What is the effect of treating an application to set aside a default judgement as an application for relief from sanctions?
AKA when considering whether to set aside judgement in these circumstances, court should apply Denton principles.
What is ‘allocation’?
Deciding which track a claim should be allocated to
Small, fast, intermediate or multi
When assessing value of claim - to decide which track a claim should be allocated to - what will be disregarded? Is value the only thing allocation is based on?
- Will disregard interest, costs, any amount not in dispute and contributory negligence
- Allocation decision based primarily on value of claim but not only thing
Will be based on other things like nature of remedy, likely complexity of facts/law, number of parties, value of counterclaim/Part 20 claim, amount of oral evidence, views expressed by parties etc.
What is the scope of the small claims track?
Cases with a value of not more than £10,000 (e.g. claims by tenant of residential premises against landlord for repairs where claim is more than £1,000)
Subject to special rules for PI claims
What is the scope of the fast track?
Fast track = Claims up to £25,000 provied…
- Trial will likely last no longer than one day (5 hours) and
- There will only be oral expert evidence from one expert per party in each of no more than two expert fields
REMEMBER THIS IS NOT DECISIVE - a claim of £26,000 could still be allocated to the fast track if remedy sought is straightforward, claim is factually simple etc.
What is the scope of the intermediate track?
Intermediate track = Claims up to £100,000 provided…
- Trial will likely last no longer than 3 days if managed proportionately and
- Oral evidence is likely to be limited to 2 experts per party
What is the overall approach taken in deciding which track to allocate to?
- Identify normal track (financial value/oral evidence/max time)
- Decide if good reason to allocate claim to other track based on other considerations (nature of remedy, complexity of facts/law, number of parties, oral evidence required etc.)
Summary of scope of each track
NB ‘normal tracks’ do not mean track will always be the one allocated to
NB addition of intermediate track!!
In the standard directions for the fast track, within how many weeks of the notice of allocation must the following be completed:
1. Disclosure
2. Exchange of witness statements
3. Exchange of experts’ reports
4. Filing pre-trial checklists at court
5. Trial date/period fixed or trial
- 4
- 10
- 14
- 22
- 30
Will usually be in County Court and should last no longer than a day
What are the deadlines for a disclosure report and draft directions? How is this different from the deadline of the directions questionnaire?
- Disclosure report = not less than 14 days before CMC
- Draft directions = at least 7 days before CMC
- Deadline for directions questionnaire will be set out in notice of proposed allocation (as this is needed before court decides which track to allocate case on)
