Case Management Flashcards
What is the overriding objective of the Civil Procedure Rules?
To deal with cases justly and at proportionate cost
The courts manage cases actively to further this
What is the foremost way that the parties can assist the court to achieve the overriding objective?
By being cooperative with one another
How can courts assist vulnerable parties and witnesses?
By making adjustments in order so that they may be on equal footing and participate fully; the court will take proportionate measures to address issues of vulnerability of parties or witnesses
By allowing them to give evidence remotely for example
The court will provisionally allocate claims to a ‘track’ using a notice of proposed allocation. The parties will also be sent a directions questionnaire to assist with track allocation.
What are some key points about the directions questionnaire?
1) Parties must co-operate to complete it
2) It is generally used to confirm the track, to assign the case to a complexity band if appropriate and to determine directions for case management
3) Some of the contents (amongst others):
- Parties asked if they want a one-month stay to settle and objecting party should give reasons why it is inappropriate
- Parties give a realistic estimate of trial length
- Where a party is legally represented and the case is likely to be allocated to the multi-track, a costs budget must be filed
- The parties should attempt to agree directions and a draft order must accompany the questionnaire.
(i) For the fast track this will usually be standard directions.
(ii) For intermediate and multi-track claims, directions should be based on the specimen directions, which are listed on the Ministry of Justice website
What are the consequences of failing to complete the directions questionnaire?
1) If the claim is for money in the County Court, the court will serve a notice on the defaulting party requiring compliance within seven days.
- Failure to do so results in the party’s statement of case being automatically struck out.
2) In all other cases, the court will make such order as it considers appropriate
- This may include an order for directions, to strike out a statement of case or to list the matter for a case management conference
What are the ‘tracks’ that a claim can be allocated to?
Small claims track
Fast track
Intermediate track
Multi-track
Where a case is provisionally allocated to the multi-track, what other documents will be required?
Where provisionally allocated to multi-track, the following documents will also be prepared:
(a) a case summary
(b) a disclosure report
(c) a costs budget and budget discussion report
What factors are considered when making an determinative allocation to a track?
- Most important factor is value of the claim
- Complexity of facts, law and evidence
- Remedy sought
- Number of parties and experts required
- Value of any counterclaim
- Amount of oral-evidence
- Expected length of trial
What amounts are not considered when making an allocation to a track?
- Interest
- Costs
- Contributory negligence
- Any sum not in dispute
Give details about the small claims track
1) Straightforward claims of £10k or less
- For RTAs after 31st May 2021, the value of damages claimed for pain, suffering and loss amenity aspect cannot exceed £5k
2) Typical claims include - Consumer disputes, landlord and tenant disputes, low value PI cases
3) Simple procedure to allow for litigants in person; costs cannot generally be recovered from the losing party
- Court can decide based on statements of case and submitted documents rather than by hearing oral evidence (if parties agree)
Give details about the fast track
Suitable for cases between £10k-£25k, where the trial is expected to last no longer than one day
Court fixes date and place of trial, which is generally about 30 weeks after allocation of track
Standard directions but may be more limited
Usually, a single joint expert, unless there is a good reason to appoint separate experts and court will rely on written report
Costs awarded on a fixed basis
Exchange of witness statements is 10 weeks from date of allocation
Give details about the intermediate track
1) For claims of more than £25k, but less than £100k
- Must involve a maximum of three parties, no more than two experts giving oral evidence on each side and 3-day trial maximum
2) Parties must agree appropriate directions to deal with matters such as:
- Disclosure of documents
- Service of witness statements – limited to 30 pages
- Expert evidence – usually one expert per party can give oral evidence and main body of reports is restricted to 20 pages
- Listing for trial (which cannot exceed 3 days)
3) Standard period between giving of directions and trial is maximum 30 weeks
4) Costs awarded on a fixed basis
Fast and intermediate track cases are assigned to a complexity band, which determines the amount of fixed recoverable costs.
Give details of these complexity bands
Fast track:
- Band 1 – defended debt claims, RTA related, non-PI claims
- Band 2 and 3 – RTA related PI claims and other PI claims
- Band 4 – professional negligence claims and other complex claims
Intermediate track:
- Band 1 – defended debt matters and claims with one issue and one day trial
- Band 2 and 3 – claims with more than one issue
- Band 4 – most complex claims with more serious issues of fact and law + trial expected to last three days
Give details about the multi-track
1) Cases of more than £100k which involve complex legal issues
2) If standard directions suitable, court will give directions and set a timetable for the steps to be taken up to trial
3) For complex claims, a case management conference (CMC) is fixed to ensure appropriate directions relating to case management are given
- These review live issues between parties that must be evaluated pre-trial
- CMC will review the steps the parties have already taken to prepare, check compliance with existing directions and give directions about further steps
What sort of legal representative should attend a CMC?
An individual who is familiar with the case must attend the CMC, and usually this is someone who has conduct of the case and has sufficient authority and information available to deal with any matter that may reasonably arise
A case summary is prepared by the claimant for CMC to assist the judge in determining how the case should proceed to trial. They will cooperate with other parties to complete it.
What information is included in a case summary?
A brief chronology of the claim
The agreed factual issues
The issues in dispute
The evidence needed to deal with the disputed issues
What directions might the court impose at the CMC for a complex multi-track case where standard direction don’t suffice?
May impose directions relating to:
- Disclosure
- Expert evidence
- Timetable to trial
- ADR
- Costs of CMC – normally an order is made for costs in the case
- Exchange of evidence (expert and witness)
- Whether there needs to be a review CMC
What are the consequences of failing to comply with a direction?
Missing a minor date is OK, if parties cooperate and meet key dates (CMC/trial)
If a step is missed, any other party can apply for an order enforcing compliance and/or imposing a sanction
Failure to comply with directions won’t postpone trial, unless there are exceptional circumstances
If a key date like CMC might be missed or ought to be postponed, what should that party do?
- Get other party’s consent in writing if possible
- Apply to the court to postpone the date and explain why this is necessary with a supporting witness statement
Generally, parties should seek the other side’s consent to vary a date if they won’t meet it.
Which dates can the parties not vary by agreement between them?
Date of:
- A case management conference
- A pre-trial review
- The return of a pre-trial check list
- The trial or trial period
What is the aim of costs management?
This enables the courts to manage the costs incurred by the parties in multi-track cases – the aim is to ensure future costs are reasonable and do not become disproportionate
As cases on the other tracks usually proceed to trial with few or no interim hearings, costs management is limited to all multi-track cases where the amount of money claimed is less than ten million pounds
It may still apply to other tracks in one form or another
Costs management conference will likely happen at same time as CMC
What is a costs budget and when must it be filed?
1) Parties complete this prescribed form, giving a detailed breakdown of ‘incurred costs’ and ‘budgeted costs’ for the future
- Must be dated and verified by a statement of truth signed by a senior legal representative of the party
2) Costs budgets must be filed:
- With the directions questionnaire for claims of less than £50k
- No later than 21 days before the first CMC for all other claims
What is a budget discussion report?
A budget discussion report must be completed no later than 7 days before the first CMC
Outlines the points of agreement and disagreement in the costs budget
If the parties cannot agree these costs, the court will review them
What are the consequences of not filing a costs budget on time/at all?
This will result in a party not being able to recover any of their future legal costs
This is because they are treated as having filed a costs budget consisting only of the court fees
Court may grant relief to this automatic sanction though
What is a costs management order and when may this be issued?
1) Unless the judge is satisfied that the litigation can be conducted justly and at proportionate cost, the court is likely to also make a costs management order, which will:
- a) record the extent to which any incurred or budgeted costs are agreed between the parties; and
- b) in respect of the budgeted costs that are not agreed, record the court’s approval after making appropriate revisions
2) The effect is to control the parties’ budgets in respect of recoverable costs
- They will only get what they budgeted for if they recover costs on standard basis, unless the court is satisfied that there is a good reason for departing from these prior budgets
3) If there is no CM order and there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference
- It is then a matter for the court to decide whether the additional amounts can be recovered
What are costs on a ‘standard basis?’
Two tests:
(1) Only costs that were reasonable and proportionate to incur are payable
(2) If payable, only in an amount that is reasonable and proportionate
What costs can the court not approve or revise?
Incurred costs
Those that are agreed by both parties
Summarise the key documents that will be needed for the CMC
For CMC:
Directions Questionnaire
Costs budget
Budget discussion report
Case summary
Disclosure report
Draft order
Produced at CMC:
Directions order
Costs management order
When might a court strike out a statement of case?
1) The statement of case discloses no reasonable grounds for bringing or defending the claim
- One with very limited information, such as a simple denial or ‘claim for X’ statement only
2) There has been a failure to comply with a rule, practice direction or court order
What other sanctions might a court impose?
- Costs sanctions – defaulting party pays on indemnity basis
- Interest sanctions – increasing or reducing interest payable on damages
- The ‘unless order’ – requires a party to do something and ‘unless’ they do, their claim/defence will be struck out
- Automatic sanction for failing to file costs budget or filing late - unable to recover legal costs
When can relief from sanctions be granted?
1) A party can apply for relief from a sanction and, in deciding whether to grant relief, the court will consider all the circumstances of the case, including the need:
- (a) for litigation to be conducted efficiently and at proportionate cost; and
- (b) to enforce compliance with rules, practice directions and orders
2) Party seeking relief must apply promptly and support their application with evidence, addressing the three stages the court will follow:
- (a) The first stage is to identify and assess the seriousness or significance of the relevant failure. If a breach was not serious or significant, relief is usually granted.
- (b) The second stage is to consider why the failure or default occurred.
- (c) The third stage is to evaluate all the circumstances of the case so as to enable the court to deal justly with the application. Factors would include whether the trial date could still be met and the effect the failure to comply and the granting of relief would have on each party
Difficult to get relief
