Case Management Flashcards
Court’s general management powers
The court has a number of powers to mange cases and costs.
Examples:
- extend/shorten the time for compliance with any rule, pd or court order
- adjourn hearings or bring them forward
- require party or legal rep to attend court
- stay the whole or part of the proceedings or judgment either generally or until a specified event
- order any party to file and serve a costs budget
Court’s power to make orders of its own initiative
Without either party taking a step the court could provide new directions or terminate a case.
Court makes an order of its own initiative without a hearing or without giving the parties the opportunity to make representations.
Court will include a statement in the order the parties have the right to apply to set aside, stay or vary the order within a given period.
If the court does not specify a period, any application should be made within 7 days of the date on which the order was served on the party making the application.
What is a strike out
Strike out is the deletion of written material from a statement of case so that it cannot be relief on in the proceedings by any party.
It can include deletion of the entire statement of case so that the case is effectively over.
Strike out is designed to target cases that are inadequately drafted or are otherwise an abuse of court process.
Court’s power to strike out
The court can exercise its power to strike out the whole or part of a statement of case of its own initiative, this is likely to happen around the allocation/case management stage when the court first engages with the substance of the dispute.
Used sparingly by the courts as there are often more suitable ways to deal with defective cases - requiring amendments or if the ground is failure to comply with previous orders made by the court - imposing a sanction such as an adverse costs order.
Difference between strike out and summary judgment
Considerable overlap between the two provisions and applications are often made for summary judgment and strike out in the alternative.
Strike out focuses on the statements of case and so covers cases which do not amount to a legally recognisable claim or defence.
Case or issues are weak as pleaded. Summary judgement covers cases which are weak on the facts.
Difference between strike out and default judgment
Default judgment is the consequence of the defendant failing to respond to a claim.
Default judgment is therefore procedural: if a defendant fails to file and acknowledgement of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment.
Court does not consider the merits of the case when ordering judgment in default. Strike out is not purely procedural.
Grounds for a strike out
a) The statement of case discloses no reasonable ground for bringing or defending the claim
- no claim or defence as a matter of law
b) The statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
- misuse of procedure
- obstructing just disposal: includes claims that are vexatious or obviously ill-founded
c) There has been a failure to comply with a rule, practice direction or court order
- failure in the way the claim has been conducted
- more likely to impose a lesser sanction for non-compliance
Judgment after strike out
If a statement of case is struck out the other party can generally obtain judgment with costs by filing a simple request at court.
Examples of sanctions
Interest: reducing the interest payable to the claimant as a sanction imposed on the claimant
Costs: ordering the defendant to pay costs on the indemnity rather than standard basis as a sanction imposed on the defendant
Striking out a statement of case
Court’s power to impose sanctions
Court can either:
- impose a sanction immediately
- make an unless order - an order which provides for an automatic sanction in the event of non-compliance with the order. Unless order must specify the date and time within which the act must be done
Failure to disclose expert report
Automatic sanction which prevents party from using it at trial
Failure to file a costs budget
Treated as only filing a costs budget of applicable court fees.
Sanctions and time limits
Where a rule, PD or court order
- requires a party to do something within a specified time and
- specified the consequences for failure to comply
the time for doing the act may not be extended by agreement between parties except for prior written agreement for maximum 28 days (so long as done not put hearing date at risk)
- unless court orders otherwise
Non-compliance with orders imposing sanctions
If a party fails to comply with a rule, PD or order imposing sanction, the sanction takes effect unless the party applies for and obtains relief from that sanction
Relief from sanctions
CPR 3.9: court must consider the need:
- for litigation to be conducted efficiently and at proportionate cost
- to enforce compliance with rules, practice directions and orders
Denton test:
1. Breach is neither serious nor significant
- If not, Why breach occurred
- All circumstances of the case - in particular cpr 3.9
Purpose of allocation
Deciding which track a claim should be allocated to.
Matter because the court manages the claims on different tracks in different ways.
Decision is based primarily on the value of the claim. When assessing value the court will disregard interest, costs, any amount not in dispute and any contributory negligence.
Four allocation tracks
- small claims track
- fast track
- intermediate track
- multi-track
Small claims track
Normal cases:
Value not more than £10,000.
Personal injury:
Not more than £10,000 and
- personal injuries damages are not more than £1,500
- personal injuries for road traffic claims are not more than £5,000
Fast track
For claims between £10,000 and £25,000, provided:
- trial will only last one day (five hours)
- there will only be oral expert from one expert per party in each of no more than two expert fields
(one expert per party)
Intermediate track
Normal track for claims (where the case is suitable for neither the small claims nor fast track) up to £100,000, provided that:
- trial will last no longer than 3 days if managed proportionately; and
- oral expert evidence is likely to be limited to two experts per party
Multi-track
For cases worth more than £100,000 or with long trial time or need for expert evidence.
Overview of allocation
- Defence is filed
- Court sends out the notice of proposed allocation, provisionally allocating the claim to the small claims track, fast track, intermediate track or multi track
- Parties file directions questionnaires
- If claim as been provisionally allocated the parties also file proposed directions
- Court will allocate the claim to track (after hearing if necessary) and serve a notice of allocation
ALLOCATION TO:
small claims: court will usually give directions
Fast track: court will usually give directions
Intermediate or multi-track: court will give directions or fix a case management conference at which directions will be considered
Notice of proposed allocation
After receiving the defence a court officer will provisionally allocate the case to a track which appears most suitable for the claim and then serve notice of the proposed allocation indicating the track for the claim.
Will also require parties to:
1. file and serve a directions questionnaire
2. fast/intermediate or multi: file proposed directions
3. For claims under costs management regime, file and serve costs budget and an agreed budget discussion report
And deadlines for these steps.
Directions questionnaire
Completed questionnaire will enable the court to determine to which track the case should be allocated.
Small claims: Form N180
Fast/Intermediate/Multi: Form N181
Will ask about:
- Pre-action protocol
- Settlement
- Disclosure
- Witnesses
- Expert Evidence
- Trial
- Costs
- Directions
- Other matters
Directions Questionnaire: Pre-action Protocol
The parties must confirm in the DQ whether they have complied with the pre-action protocols.
If there is no specific pre-action protocol then parties are expected to comply with the practice direction on Pre-Action Conduct.
If a party fails to comply with the pre-action protocol is must explain why and there may be sanctions.
Directions Questionnaire: Settlement
There is a section where the parties can request the court stay the proceedings so the parties can try to settle.
A stay is a period of time during which proceedings are paused and the parties cannot take further steps in the proceedings.
Legal Representation have to confirm in the DQ that they have explained to their client the need to consider settling the claim and that there could be costs consequences against them if the client unreasonably refuses to try and settle.
If all parties request a stay it will be for a month.
In any other circumstances the court can grant is if it considers it appropriate.
Stays are usually granted one month at a time and if the case is not settled at the end of that period the case will be referred to judge for allocation and directions.
Directions Questionnaire: Disclosure
The DQ also asks the parties to provide a lot of case management information as to the future preparation of the case for trial including the extent of disclosure.
Directions Questionnaire: Witnesses
Each party will also be required to name the witness that it would like to call to trial and detail what it hopes they will help prove.
Directions Questionnaire: Expert Evidence
Client will need court’s permission to rely on expert evidence.
Directions Questionnaire: Trial
Parties are required to estimate the time needed for trial and good idea to consult counsel for an accurate estimate.
Directions Questionnaire: Directions
Requires parties to attempt to agree directions and to attach them if the case has been provisionally allocated.
Proposed directions are filed with the DQ whether the parties have reached agreement or not.
Directions Questionnaire: Other Matters
- which court the claim should be heard in
- which track the parties think the case should be allocated to
- which complexity band the parties think the case should be assigned to if it is to be allocated to the fast or intermediate track
- whether the parties have already made any interim applications and whether they intend to make any in the future
- any other facts or documents the parties wish the judge to consider on allocation
Allocation
Once DQ and other documents have been filed the court will allocate the claim to a track (and for fast and intermediate assign a complexity band).
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.
Allocation hearings are quite rare.
Once the court makes an allocation decision, it will send notice of allocation to the parties together with a copy of the DQ.
Criteria for allocation
- Financial value of the claim
- Nature of the remedy sought
- Likely complexity of the facts, law or evidence
- Number of parties or likely parties
- Value of counterclaim
- Amount of oral evidence
- Public importance of the claim
- Views expressed by the parties
- Circumstances of the parties
APPROACH:
- Identify normal track
- decide whether there is good reason to allocate the claim to a track other than the normal track, taking into the considerations listed immediately above.
Feature of the small claims track
- Very limited costs recovery
The court will rarely order one party to pay any costs to the other party other than very limited fixed costs (and court fees and witness expenses)
- Fewer formalities
Certain CPR rules do not apply to cases allocated to the small claims track and hearings on the small claims track are informal with parties generally representing themselves.
Note: These two features encourage litigants to represent themselves
- Abbreviated directions
Usually include:
(a) parties file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing
(b) original documents be brought to the hearing
(c) Notice of the hearing date (at least 21 days) and time allowed for hearing
(d) The court must be informed if, by agreement between the parties the case settles
Standard directions for the fast track
Within how many weeks of the notice of allocation:
Disclosure: 4 weeks
Exchange of witness statements: 10 weeks
Exchange of experts reports: 14 weeks
Filing pre-trial checklists at court: 22 weeks
Trial date: 30 weeks
Directions on intermediate track
The Parties are required to endeavour to agree directions and submit them to the Court 7 days before the CMC. If the Court agrees the directions or issues its own directions the CMC will be vacated.
Options on allocation to the multi-track
Court will either:
- Give directions (usual if the case is not complex)
- Hold a case management conference
Purpose of a case management conference
- Suitability of the case for settlement
- Position the parties have reached in the litigation
- Steps the parties have already taken
- Compliance with previous directions/orders
- Estimated costs of litigation and whether this is proportionate
- Steps to be taken in teh future
Issues considered at a CMC
- Whether claim is clear
- Whether any statements need to be amended
- What disclosure is required, if any
- What expert evidence is required and how and when it should be obtained
- What factual evidence should be provided for
- Whether any further information is required
- Whether it will be just and save costs to order a split trial or the trial of one or more preliminary issues
Who should attend the CMC?
Any legal representative attending a CMC must:
- Be familiar with the case
- Have sufficient authority to deal with any issues likely to arise (like discussing directions/identifying issues)
CMC procedure
File disclosure report: not less than 14 days before CMC
File draft directions: not less than 7 days before
Directions in multi-track cases
Parties are under an express obligation to try to agree directions before any CMC.
This satisfies the overriding objective by saving time and money and is reinforced by the requirement that agreed directions have to be submitted to out at least seven days before any CMC.
If parties have agreed all the directions required - it may vacate the CMC.
Where parties have been unable to agree directions then the CMC will be used for the court to give directions. The court likely hear submissions from the representatives at the CMC before deciding what directions to make.
Disclosure report
In multi-track cases both parties must produce a disclosure report unless the claim includes a claim for personal injury.
Not less than 14 days before the first CMC must file and serve the report verified by a statement of truth in the form of Form N263 or can use electronic documents questionnaire N264 which is filed alongside Disclosure Report.
What goes in a disclosure report?
a) Describes what documents exist or may exist, that are, or may be, relevant to the matters in issue in the case
b) Describes where and with whom those docuemnts are or may be located
c) Describes how many documents are stored
d) Estimates the costs in giving standard disclosure
e) States which of the disclosure directions are to be sought
Case summaries
May be helpful to court.
Short document of not more than 500 words prepared by the claimant and agreed with the other parties, designed to assist the court in understanding and dealing with the issues raised.
Should contain:
- Chronology of the claim
- Factual issues agreed and in dispute
- Nature of the evidence needed to decide them
