Case Management And Costs Flashcards
What are the 3 types of litigation costs
Solicitor - client costs
Inter-party costs
Non - party costs
What are inter - party costs
Inter-party costs is the term used for the actual figure for costs awarded by the court which one party has to pay the other party
What is the most likely circumstances in which the court will order non - party costs (Costs against a non - party)
The most likely circumstances in which the court will order non-party costs is where there is a ‘funder’, who is not a party, who is funding the litigation.
What is the general rule in relation to costs
The general rule governing whether costs are payable by one party to another is that ‘costs follow the event’.
This means that the unsuccessful party (i.e. the loser) pays the costs of the successful party (ie the winner) (CPR 44.2(2)(a)).
Does the court have complete discretion in relation to costs
Yes
What factors are the court likely to take into account when departing from the general rule in relation to costs
The parties’ conduct (including in relation to ADR / offers to settle)
Whether a party has succeeded on only some issues / part of the claim
What is the exception to the general costs rule for personal injury or death claims
If the claimant loses the case or any aspect of it, costs orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant.
What are the two basis for cost assessment
Standard basis
Indemnity basis
In general when will indemnity costs be used
Where there is some element of a party’s conduct of a case which deserves some mark of disapproval
What costs will the court allow using standard basis of assessment
Costs which have been proportionately and reasonably incurred; and
Are proportionate and reasonable in amount
Any doubt is resolved in favour of the paying party
What costs will the Court allow in indemnity basis assessment
Costs which have been reasonably incurred; and
Are reasonable in an mount
Any doubt is resolved in favour of the receiving party
When will costs be proeportinate
Costs will be proportionate if they bear a reasonable relationship to the following specified criteria (CPR 44.3(5)):
The sums in issue in the proceedings;
The value of any non-monetary relief in issue in the proceedings;
The complexity of the litigation;
Any additional work generated by the conduct of the paying party; and
Any wider factors involved in the proceedings, such as reputation or public importance
Unless the court orders otherwise when must the party comply with order for the payment of costs
Within 14 days of:
the date of the judgment or order if it states the amount of costs;
if the amount of those costs (or part of them) is decided later, the date of the certificate which states the amount;
Which claims to fixed costs apply to
All small claims
All fast and intermediate track cases
What determines the amount of fixed costs that can be recovered
The assigned complexity band
The complexity band assigned and the stage at which the case is concluded determines the amount of fixed costs that can be recovered by reference to the table 12 in PD45 for fast track cases and table 14 in PD45 for intermediate track cases.
What is a summary assessment in relation to costs
This involves the court determining the amount payable by way of costs immediately at the end of a hearing.
What must the parties prepare to enable the court to carry out a summary assessment
the parties must prepare statements of costs, preferably on the standard form N260 (44 PD 1.2)) and file and serve them on each party not less than 24 hours before the time fixed for the hearing (44 PD 9.5(4)(b)).
Unless there is good reason not to do so, when should the court use this summary assessment
procedure
> In fast track cases at the end of the trial. In this situation, the costs of the whole case
will be assessed; and
At the end of a hearing of an interim application or matter which has not lasted more than a day. In this case, usually only the costs of the interim application will be assessed.
What is the outline procedure for a detailed cost assessment
The court, on deciding that one party should pay the other party’s costs, orders that they be subject to detailed assessment (if not agreed. At that point, the court makes no attempt to set a figure on them.
To commence the detailed assessment proceedings, the receiving party serves a notice of commencement and a copy of its bill of costs (a more detailed statement of costs than used in summary assessment) on the paying party.
Points of dispute in relation to any item in the bill of costs should then be served on the receiving party by the paying party within 21 days of service of the notice of commencement.
If the parties cannot reach agreement, the receiving party should then file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid.
What must consideration of costs orders made by the court include
the role played by the parties’ respective budgets and the costs management procedure.
What are the most common type of interim cost orders
Costs in any event
Costs in the case
Costs reserved
What are costs in any event
The party in whose favour this order is made is awarded its costs of the interim hearing from the other party regardless of who eventually wins at trial
What are costs in the case
The party who eventually gets its cost at trial (usually the winner) Will recover its costs of the interim hearing from the other party
Costs reserved
The decisions about who pays the costs of the interim hearing is put off to a later occasion. If no decision is later made then the costs will be in the case
What are examples of the courts case management and costs powers
- Extend/shorten the time for compliance with any rule, practice direction or court order.
- Adjourn hearings or bring them forward.
- Require a party or their legal representative 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.
There is also a general provision allowing the court to take any other step or make any order for the purpose of managing the case and furthering the overriding objective (CPR 3.1(2)(m)).
What is the courts power to strike out
Strike out is the deletion of written material from a statement of case so that it cannot be relied 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 the court process.
What is the difference between a a strike out and a summary judgment
Strike out focuses on the statement of case and so covers cases which do not amount to a legally recognisable claim or defence. The case or issues are weak as pleaded. Summary judgment (CPR 24) covers cases which are weak on the facts.
What are the grounds for strike out
(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, practice direction or court order.
Can the court make orders on its own initiative
Yes
If the whole of a statement of case is struck out, might the court also give judgment for a party
Yes
What can sanctions relate to
Interest - (eg reducing the interest payable to the claimant as a sanction imposed on the claimant)
Costs - (eg 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 - (striking out a statement of case is considered in more detail in the element ‘Case management powers and striking out’).
Other measures adverse to a party could also be considered sanctions: there is no definitive list of sanctions in the CPR
What are example of sanctions imposed by the CPR
In addition to the court’s direct powers to impose sanctions, there are also various provisions of the CPR that impose automatic sanctions for default, examples include where failure to disclose an expert report prevents a party from using that report at trial (CPR 35.13) and where failure to file a costs budget will be treated as only filing a costs budget of applicable fees (CPR 3.14).
What will the court consider on application for relief from sanctions
the court will consider all the circumstances of the case so as to enable it to deal justly with the application (CPR 3.9(1)). The rules expressly require the court to consider the need:
- For litigation to be conducted efficiently and at proportionate cost.
- To enforce compliance with rules, practice directions and orders.
What three stages should an application for relief of sanctions be approached in (Denton principles)
- Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then relief should be granted.
- If the breach is serious or significant, consider why the default occurred.
- Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly, but with particular weight to be given to the requirements under CPR 3.9 that (1)(a) litigation must be conducted efficiently and at proportionate cost and (1)(b) the court must enforce compliance with rules, practice directions and orders.
Is an application to set aside a default judgment considered a relief from sanctions and therefore the Denton pricnipels should be applied
Yes
What claims will be allocated to the small claims track
Cases with a value of not more than £10,000
Claims by a tenant of residential premise against a landlord of repairs where neither the repairs or any claim for damages total more than £1000
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
What claims will be allocated to the fast track
Claims up to £25,000 provided that:
(A) the rial is likely to last no longer than one day; and
(B) there will only be oral expert evidence from one expert per party in each of no more than two expert fields
What claims will be allocated to the intermediate track
Up to £100,000 provided that:
(A) the trial is likely to last no longer than 3 days if managed proportionately; and
(B) oral expert evidence is likely to be limited to two experts per party
What claims will be allocated to the multi track
The multi track is the nominal track for all other types of cases
What is an overview of allocation
- Defence is filed
- Court sends out the notice of proposed allocation
- Parties file directions questionnaire
- If that claim has been provisionally allocated to the fast Track, intermediate track or multi track, the parties also file proposed directions
- The court will allocate the claim to a track, and serve a notice of allocation
What is a notice of proposed allocation
This is used for all tracks. It is served by the court upon receipt of the defecne. It’s purpose is to advise the parties on steps they need to take to allocate the case to the correct track. It’s content specifies any matters to be complied with and date of compliance.
What is the directions questionnaire
A directions questionnaire contains information provided by the parties which is required for the court to determine allocation and to make directions for the future managmnet of the case. The timing is spepecified in the notice of propsed allocation, for multi track cases this will be at least 28 days after the notice of proposed allocation.
What is included in the content of directions questionnaire
Pre action protocol
Settlement
Disclosure
Witnesses
Expert evidence
Trial
Costs
Directions
Other matters, inclduing which court the claim should be heard in, which track the parties think the case should be allocated to etc
What is a cost budget (precedent H)
A cost budget is an estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings. This is specifically relevant to multi track cases of less than 10 million. It needs to be severed by each party not less than 21 days before the CMC. It can be served with the directions questionaire, and needs to be if the value of the claim is less than 50,000.
What is the purpose of cost budget
It enables the court to control costs, encourages forward planning by parties and engender increased transparency for clients. Additionally, it furthers the overriding objective.
Must the cost budget (precedent H) be signed with its own statement of truth
Yes
What is a budget discussion report (precedent R)
Once the parties have filed and exchanged costs budgets, they are required to discuss budgets with each other in order to agree the costs figures where possible.
By the budget discussion report, the parties indicate:
The figures which are agreed and not agreed for each phase of the litigation; and
A brief summary of the grounds of dispute.
When must The parties must file and exchange budget discussion reports (Precedent R)
No later than 7 days before the first CMC
What is a disclosure report (form N263)
each party must file and serve a report verified by a statement of truth that:
Briefly describes what documents exist, or may exist, that are, or may be, relevant to the matters in issue in the case;
Describes where, and with whom, those documents are, or may be, located;
Describes how any electronic documents are stored;
Estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and
States which of the disclosure directions are to be sought.
When must a disclosure report be filed by
Not less than 14 days before the CMC
What is the approach that should be taken when determining the correct track
Identify the normal track
Decide whether there is a good reason to allocate the claim to a track other than the normal track, taking into the considerations listed immediately above
What are the matters the court will consider when deciding to which track a case should be allocated
The financial value of the claim;
The nature of the remedy sought;
The likely complexity of the facts, law or evidence;
The number of parties or likely parties
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);
The amount of oral evidence which may be required;
The importance of the claim to any persons who are not parties;
The views expressed by the parties; and
The circumstances of the parties.
Will the court likely give directions If the claim is allocated to the small claims track or the fast track, as to how the claim should proceed
Yes
When may the court fix a case management conference at which directions will be considered
If the claim has been intermediate track or multi track
Can costs be recovered in 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).
What do the standard directions usually include in the small claims track
The standard directions usually include:
- Parties to file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing (this in place of more detailed directions for disclosure, witness and expert evidence that you might expect on other tracks);
- Original documents to be brought to the hearing;
- Notice of the hearing date (at least 21 days’ notice will usually be given) and time allowed for the hearing (CPR 27.4(2)); and
- That the court must be informed if, by agreement between the parties, the case settles.
What are the usual standard directions for fast track cases
Disclosure (the direction will generally be for either no disclosure, standard disclosure, or disclosure of particular documents) - 4 weeks notice
Exchange of witness statements – 10 weeks notice
Exchange of experts’ reports (with associated directions for questions etc) – 14 weeks notice (Limits on amount of experts. SJE preferred)
Filing pre-trial checklists at court – 22 weeks notice
Trial date / period fixed or trial – 30 weeks notice (Trial lasts no longer than 1 day. Fixed costs apply to trial)
For intermediate track claim what is the total permitted length of witness statements and summaries
The total length of permitted witness statements and summaries is limited to 30 pages and experts reports to 20 pages (excluding necessary photographs, plans and academic/technical articles which are attached to the report) (CPR 28.14 (3)).
Do fixed costs and complexity bands apply to intermediate track claims
Yes
When should the trial of immediate track cases take place
As in the fast track the trial of an intermediate track case should also take place within 30 weeks of allocation (28 PD 3.11).
What is the purpose of a case management conference (CMC)
to ensure that the real issues between the parties are identified and understood by the parties and the court, and to then make appropriate directions to take the matter towards trail
What issues are considered at a CMC
Whether the claim is clear;
Whether any statements of case 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 (eg witness statements) should be provided for;
Whether any further information is required; and
Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.
What is a case summary
Case summaries: Parties are required to consider whether a case summary will be useful at the CMC (29 PD5.6(3) and 5.7). This is a short document of not more than 500 words, prepared by the claimant and (if possible) agreed with the other parties, designed to assist the court in understanding and dealing with the issues raised.
Would should a case summary contain
A chronology of the claim;
Factual issues agreed and in dispute; and
The nature of the evidence needed to decide them.
What cases does the costs management regime not apply to
Small claims track, fast track or intermediate 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.
Note, however, that the court can disapply the costs management regime even when it would normally apply automatically (for example, where a claimant has as a limited or severely impaired life expectation of 5 years or less remaining - 3D PD 1), or require compliance with the regime even when it would not normaly apply
When should a budget be filed
Stated value of the claim is less than £50,000 - With the parties’ directions questionnaires
Any other case - 21 days before the first CMC
When assessing costs on the standard basis where a CMO (cost management order) has been made will the court depart form the agreed costs budget
No - unless satisfied that there is good reason to do so
What is a fundamental principle of cost recovery
party cannot recover a greater sum for costs from an opponent than it has in fact incurred: this is true even if the budget provides for a greater sum than has been incurred. The budget effectively becomes a ‘cap’ on what can be recovered
Are you generally allowed to correct inadequacies or mistakes in the preparation of a costs budget
No
When can cost budgets be revised
If significant developments in the litigation warrant a revision to a party’s budget (upwards or downwards), then:
An amended budget should be submitted to the other parties for agreement if possible (using a form prescribed specifically for variations - ‘Precedent T’, annexed to 3D PD); and
The amended budget then needs to be submitted to court for consideration.
What are the consequences of failing to file a budget
will be automatically treated as having filed a costs budget comprising of only the applicable court fees unless the court otherwise orders (CPR 3.14).
