Case Management and Costs

Question 1

When was the fixed costs regime introduced and when does it apply?

Answer 1

From 1 October 2023, fixed costs now apply to all small claims, fast and intermediate track cases.

Question 2

If costs do not fall under the fixed costs regime, how are costs agreed?

Answer 2

Either by summary assessment of costs or by detailed assessment of costs.

Question 3

When should the Court use the summary assessment procedure?

Answer 3

Unless there is good reason not to do so the Court should use the summary assessment procedure:

-at the end of a fast track trial
-at the end of a hearing of an interim application which has not lasted more than a day

Question 4

Outline the procedure for costs subject to detailed assessment.

Answer 4

1. Receiving party serves a notice of commencement and a copy of its bill of costs on the paying party
2. Points of dispute are then served on the receiving party within 21 days of service of the notice of commencement
3. If the parties cannot reach agreement, the receiving party should file a request for a detailed assessment hearing

Question 5

What does costs in any event mean?

Answer 5

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 6

What does costs in the case mean?

Answer 6

The party who eventually gets its costs at trial will recover its costs of the interim hearing from the other party.

Question 7

What does costs reserved mean?

Answer 7

The decision on costs is put off to a later occasion. If no decision is made, the costs will be costs in the case.

Question 8

What does C or D costs in the case mean?

Answer 8

If the C is successful and receives an order that it should be entitled to costs at the trial, it can include the costs of the interim application. If the D is awarded costs at trial, the C does not have to pay the D’s costs of the interim application.

In the case of D’s costs in the case, the same principles apply but in reverse.

Question 9

What does costs thrown away mean?

Answer 9

If a judgment or order is set aside, the party in whose favour this order is made is entitled to the costs incurred as a result of the judgment or order being set aside.

Question 10

What does costs of and caused by mean?

Answer 10

A party must pay the costs resulting from something that party has done e.g. costs incurred by the D resulting from a C amending its particulars of claim.

Question 11

What does costs here and below mean?

Answer 11

The party in whose favour the order is made is entitled not only to their costs in respect of the proceedings in which the Court makes the order but also to that party’s costs of the proceedings in any lower Court.

Question 12

What does no order as to costs mean?

Answer 12

Each party will bear its own costs of the hearing.

Question 13

If the Court makes an order of its own initiative, what time limit does a party have to make an application to set aside, stay or vary the order?

Answer 13

Any application to set aside, stay or vary the order must be made within seven days of the date on which the order was served on the party making the application.

Question 14

What are the three possible grounds for strike out?

Answer 14

1. No reasonable ground for bringing/defending the claim
2. Abuse of process/likely to obstruct the just disposal of proceedings
3. Failure to comply with a rule, PD or Court order

Question 15

What is an unless order?

Answer 15

A Court order which provides for an automatic sanction in the event of non-compliance with the order.

Question 16

What is the three stage approach by the Court to an application for relief from sanctions as set out in Denton (2014)?

Answer 16

1. Identify the seriousness/significance of the breach. If the breach is neither, then relief should be granted (hearing date affected unlikely to be granted).
2. If the breach is serious/significant, consider why the default occurred.
3. Having considered the reason for default, the Court should evaluate all the circumstances of the case.

Question 17

What is allocation?

Answer 17

Allocation is about deciding which track a claim should be allocated to: the small claims track, the fast track, the intermediate track or the multi-track.

Question 18

Outline the scope of the small claims track.

Answer 18

-Maximum value of £10,000 for most claims

-Minimal amount of fixed costs

-The small claims track limit for personal injury claims is £1,500

-The limit for road traffic accident claims is £5,000

Question 19

Outline the scope of the fast track.

Answer 19

-Normal track for claims between £10,000-£25,000

-Trial likely to last no longer than one day

-Oral expert evidence from one expert per party in each of no more than two expert fields

-Fixed costs regime applies

Question 20

Outline the scope of the intermediate track.

Answer 20

-Normal track for claims between £25,000-£100,000

-Trial likely to last no longer than 3 days if managed proportionately

-Oral expert evidence likely to be limited to two experts per party

-Maximum of 3 parties usually

-Fixed costs regime applies

Question 21

Outline the scope of the multi-track.

Answer 21

-Normal track for all other types of case, usually above £100,000 with multiple experts or parties or complex issues

-Fixed costs regime does not apply

Question 22

What does the notice of proposed allocation require the parties to do?

Answer 22

-File and serve a DQ

-On the fast track, intermediate track or multi-track, file proposed directions; and

-For claims under the costs management regime, file and serve a costs budget and an agreed budget discussion report

Question 23

What is the directions questionnaire (DQ)?

Answer 23

The DQ is a Court document that contains a number of questions to help the Court decide which track is most appropriate for the case.

Question 24

What is the principal criterion for allocation and outline the broader list of factors that are also taken into account?

Answer 24

Most important factor is how much the claim is worth. Other important factors include:

(a) The financial value of the claim;

(b) Nature of the remedy sought

(c) Likely complexity of the facts, law or evidence

(d) Number of parties/likely parties

(e) The value of any counterclaim or other Part 20 claim

(f) Amount of oral evidence

(g) Important of the claim to any non-parties

(h) Views expressed by the parties and their circumstances

Question 25

What are the standard directions for small claims track cases?

Answer 25

Standard directions usually include:

(a) 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;

(b) Original documents to be brought to the hearing;

(c) Notice of the hearing date (at least 21 days’ notice will usually be given); &

(d) That the Court must be informed if, by agreement between the parties, the case settles

Question 26

What are the standard directions for fast track claims?

Answer 26

Standard directions for the fast track include the following from the date of notice of allocation:

-Disclosure within 4 weeks
-Witness statements within 10 weeks
-Expert reports within 14 weeks
-PTCs within 22 weeks
-Trial date/trial window within 30 weeks

Question 27

If the Court fix a CMC for a claim, when must the parties agree appropriate directions and submit them to the Court?

Answer 27

7 days in advance of the CMC (if one is listed). If the Court approves the directions, or issues its own directions, the CMC will be vacated.

Question 28

What are the most likely next steps if the Court propose allocation to the multi-track?

Answer 28

The Court giving directions or listing a CMC (case management conference).

Question 29

What is the purpose of a CMC?

Answer 29

A CMC is intended to ensure that the real issues between the parties are identified and understood by the parties and the Court, and to see if they can be narrowed before trial. The Court will determine directions for the future conduct of the case.

Question 30

Who should attend the CMC?

Answer 30

A legal representative who is familiar with the case and has sufficient authority to deal with any issues likely to arise.

Question 31

When should the parties in a multi-track claim file a disclosure report?

Answer 31

Unless the claim is a personal injury claim (where no disclosure report is required), the parties should file a disclosure report at least 14 days before the first CMC.

Question 32

What is a Precedent H costs budget?

Answer 32

A ‘budget’ is defined in the CPR Glossary as an estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.

The budget relates to what a party might hope to recover from the other side in the event they are successful.

Question 33

If the stated value of the claim is less than £50,000 , when should the parties file costs budgets?

Answer 33

With the parties DQs.

Question 34

If the stated value of the claim exceeds £50,000, when should costs budgets be filed?

Answer 34

21 days before the first CMC.

Question 35

What is a Precedent R budget discussion report and when must they filed?

Answer 35

The parties must file and exchange budget discussion reports (Precedent R) no later than seven days before the first CMC.

The parties indicate:

a) The figures which are agreed and not agreed for each phase of the litigation; and

b) A brief summary of the grounds of dispute

Question 36

When will the Court make a costs management order (CMO)?

Answer 36

The Court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO.

Question 37

What is the effect of a CMO when the Court is assessing costs on the standard basis?

Answer 37

The Court will have regard to a party’s last approved or agreed costs budget and will not depart from it unless satisfied that there is good reason to do so.

The approved budget essentially acts as a cap on what the party can recover.

Question 38

What is the effect on proceedings if no CMO is made?

Answer 38

If no CMO is made, then the position is less ‘strict’.

If there is a difference of 20% or more between the costs claimed by a receiving party on detailed assessment and the costs shown in a budget filed by that party, the receiving party must provide a statement of the reasons for the difference.

Question 39

What should a party do if they wish to revise their costs budget?

Answer 39

-An amended budget should be submitted to the other parties for agreement if possible (using a Precedent T)

-The amended budget then needs to be submitted to court for consideration

Question 40

What is the effect of a party failing to file a costs budget when required to do so?

Answer 40

The party will be automatically treated as having filed a costs budget comprising of only the applicable Court fees unless the Court orders otherwise.