Case Management And Costs

Question 1

What are the 3 types of litigation costs

Answer 1

Solicitor - client costs
Inter-party costs
Non - party costs

Question 2

What are inter - party costs

Answer 2

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

Question 3

What is the most likely circumstances in which the court will order non - party costs (Costs against a non - party)

Answer 3

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.

Question 4

What is the general rule in relation to costs

Answer 4

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)).

Question 5

Does the court have complete discretion in relation to costs

Answer 5

Yes

Question 6

What factors are the court likely to take into account when departing from the general rule in relation to costs

Answer 6

The parties’ conduct (including in relation to ADR / offers to settle)
Whether a party has succeeded on only some issues / part of the claim

Question 7

What is the exception to the general costs rule for personal injury or death claims

Answer 7

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.

Question 8

What are the two basis for cost assessment

Answer 8

Standard basis
Indemnity basis

Question 9

In general when will indemnity costs be used

Answer 9

Where there is some element of a party’s conduct of a case which deserves some mark of disapproval

Question 10

What costs will the court allow using standard basis of assessment

Answer 10

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

Question 11

What costs will the Court allow in indemnity basis assessment

Answer 11

Costs which have been reasonably incurred; and
Are reasonable in an mount
Any doubt is resolved in favour of the receiving party

Question 12

When will costs be proeportinate

Answer 12

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

Question 13

Unless the court orders otherwise when must the party comply with order for the payment of costs

Answer 13

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;

Question 14

Which claims to fixed costs apply to

Answer 14

All small claims
All fast and intermediate track cases

Question 15

What determines the amount of fixed costs that can be recovered

Answer 15

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.

Question 16

What is a summary assessment in relation to costs

Answer 16

This involves the court determining the amount payable by way of costs immediately at the end of a hearing.

Question 17

What must the parties prepare to enable the court to carry out a summary assessment

Answer 17

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)).

Question 18

Unless there is good reason not to do so, when should the court use this summary assessment
procedure

Answer 18

> 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.

Question 19

What is the outline procedure for a detailed cost assessment

Answer 19

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.

Question 20

What must consideration of costs orders made by the court include

Answer 20

the role played by the parties’ respective budgets and the costs management procedure.

Question 21

What are the most common type of interim cost orders

Answer 21

Costs in any event
Costs in the case
Costs reserved

Question 22

What are costs in any event

Answer 22

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

Question 23

What are costs in the case

Answer 23

The party who eventually gets its cost at trial (usually the winner) Will recover its costs of the interim hearing from the other party

Question 24

Costs reserved

Answer 24

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

Question 25

What are examples of the courts case management and costs powers

Answer 25

• 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)).

Question 26

What is the courts power to strike out

Answer 26

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.

Question 27

What is the difference between a a strike out and a summary judgment

Answer 27

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.

Question 28

What are the grounds for strike out

Answer 28

(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.

Question 29

Can the court make orders on its own initiative

Answer 29

Yes

Question 30

If the whole of a statement of case is struck out, might the court also give judgment for a party

Answer 30

Yes

Question 31

What can sanctions relate to

Answer 31

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

Question 32

What are example of sanctions imposed by the CPR

Answer 32

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).

Question 33

What will the court consider on application for relief from sanctions

Answer 33

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.

Question 34

What three stages should an application for relief of sanctions be approached in (Denton principles)

Answer 34

1. 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.
   2. If the breach is serious or significant, consider why the default occurred.
2. 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.

Question 35

Is an application to set aside a default judgment considered a relief from sanctions and therefore the Denton pricnipels should be applied

Answer 35

Yes

Question 36

What claims will be allocated to the small claims track

Answer 36

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

Question 37

What claims will be allocated to the fast track

Answer 37

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

Question 38

What claims will be allocated to the intermediate track

Answer 38

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

Question 39

What claims will be allocated to the multi track

Answer 39

The multi track is the nominal track for all other types of cases

Question 40

What is an overview of allocation

Answer 40

1. Defence is filed
2. Court sends out the notice of proposed allocation
3. Parties file directions questionnaire
4. If that claim has been provisionally allocated to the fast Track, intermediate track or multi track, the parties also file proposed directions
5. The court will allocate the claim to a track, and serve a notice of allocation

Question 41

What is a notice of proposed allocation

Answer 41

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.

Question 42

What is the directions questionnaire

Answer 42

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.

Question 43

What is included in the content of directions questionnaire

Answer 43

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

Question 44

What is a cost budget (precedent H)

Answer 44

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.

Question 45

What is the purpose of cost budget

Answer 45

It enables the court to control costs, encourages forward planning by parties and engender increased transparency for clients. Additionally, it furthers the overriding objective.

Question 46

Must the cost budget (precedent H) be signed with its own statement of truth

Answer 46

Yes

Question 47

What is a budget discussion report (precedent R)

Answer 47

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.

Question 48

When must The parties must file and exchange budget discussion reports (Precedent R)

Answer 48

No later than 7 days before the first CMC

Question 49

What is a disclosure report (form N263)

Answer 49

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.

Question 50

When must a disclosure report be filed by

Answer 50

Not less than 14 days before the CMC

Question 51

What is the approach that should be taken when determining the correct track

Answer 51

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

Question 52

What are the matters the court will consider when deciding to which track a case should be allocated

Answer 52

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.

Question 53

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

Answer 53

Yes

Question 54

When may the court fix a case management conference at which directions will be considered

Answer 54

If the claim has been intermediate track or multi track

Question 55

Can costs be recovered in the small claims track

Answer 55

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).

Question 56

What do the standard directions usually include in the small claims track

Answer 56

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.

Question 57

What are the usual standard directions for fast track cases

Answer 57

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)

Question 58

For intermediate track claim what is the total permitted length of witness statements and summaries

Answer 58

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)).

Question 59

Do fixed costs and complexity bands apply to intermediate track claims

Answer 59

Yes

Question 60

When should the trial of immediate track cases take place

Answer 60

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).

Question 61

What is the purpose of a case management conference (CMC)

Answer 61

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

Question 62

What issues are considered at a CMC

Answer 62

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.

Question 63

What is a case summary

Answer 63

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.

Question 64

Would should a case summary contain

Answer 64

A chronology of the claim;
Factual issues agreed and in dispute; and
The nature of the evidence needed to decide them.

Question 65

What cases does the costs management regime not apply to

Answer 65

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

Question 66

When should a budget be filed

Answer 66

Stated value of the claim is less than £50,000 - With the parties’ directions questionnaires
Any other case - 21 days before the first CMC

Question 67

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

Answer 67

No - unless satisfied that there is good reason to do so

Question 68

What is a fundamental principle of cost recovery

Answer 68

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

Question 69

Are you generally allowed to correct inadequacies or mistakes in the preparation of a costs budget

Answer 69

No

Question 70

When can cost budgets be revised

Answer 70

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.

Question 71

What are the consequences of failing to file a budget

Answer 71

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).