Case management and disclosure of documents

Question 1

Allocation to a track - Directions questionnaire - What is should include

Answer 1

1) Settlement - must confirm the need to settle and the options available
2) Court
3) Pre-action protocols
4) Case-management info.
5) Experts
6) Witnesses
7) Trial
8) Costs
9) Other info.
10) Directions

Question 2

Allocation to a track - Directions questionnaire - What is should include - Additional info. for multi-track cases

Answer 2

In claims that have been provisionally allocated to the multi-track the following documents should also be prepared:
- A case summary
- A disclosure report
- A costs budget and budget discussion report

Question 3

Allocation to a track - Part 26 important factors

Answer 3

Part 26 sets out other factors to which the court must have regard in allocating a case to a track, these include:
- Remedy sought
- Complexity of facts, law and evidence
- No. of parties
- Value of any counterclaim
- Amount of oral evidence
- Importance to non-parties
- Views and circumstances of parties

Question 4

Allocation to a track - Part 26 Disregarded factors

Answer 4

• Interest
• Costs
• Contributory negligence
• Any sum not in dispute

Question 5

Small claims track - What are small claims?

Answer 5

Small claims are those with a financial value of £10,000 or less. E.g consumer disputes, disputes about ownership of goods and those between a landlord and tenant

Question 6

Small claims track - Directions

Answer 6

• Each party delivering to the others copies of all documents on which they intend to rely
• A requirement for them to bring original documents to the hearing
• The parties not being allowed to rely on an expert’s report without express permission from the court

Question 7

Fast track - What claims fall under this?

Answer 7

The claim must fall on or between the relevant financial value bands of £10,001 and £25,000. The court will also take into account the likely length of the trial before making a final decision on allocation. Only those cases where the trial is expected to last no longer than one day are generally suitable for the fast track.

Question 8

Fast track - Directions

Answer 8

Usually issue standard directions.
- Expert evidence is more limited. The court will usually order a single joint expert unless there is a good reason to appoint separate experts and will rely upon their written report at trial rather than allowing the expert to give oral evidence

Question 9

Fast track - Timetable

Answer 9

1) Disclosure - 4 weeks
2) Exchange of witness statements - 10 weeks
3) Exchange of expert’s reports - 14 weeks
4) Courts send pre-trial checklists - 20 weeks
5) Parties file pre-trial checklists - 22 weeks
6) Hearing - 30 weeks

Question 10

Multi-track - Which claims fall under?

Answer 10

Cases that have a value of more than £25,000 will usually be allocated to this track. More complex cases.

Question 11

Multi-track - Directions - Standard directions

Answer 11

The standard directions will usually be used. The court will usually:
- Give directions for the management of the case
- Set a timetable for the steps to be taken up to trial

Question 12

Multi-track - Directions - Flexible approach

Answer 12

In more complex claims the court will need to adopt a flexible approach. This recognises that the time required for the parties to complete each step may be considerably longer than on the fast track. In such instances the court will:
- Fix a case management conference to ensure that appropriate directions relating to the management of the case given.

Question 13

Multi-track - Directions - Case summary

Answer 13

In most multi-track cases a case summary will be prepared to assist the judge in determining how the case should proceed to trial. The case summary should set out a brief chronology of the claim, state the factual issues that are agreed and those that are not, and the evidence needed to decide them.

Question 14

Directions - Part 29

Answer 14

If the standard directions are not sufficient the court’s general approach will be to list directions covering the following issues:
- Expert evidence
- Exchange of factual evidence
- Timetable to trial
- Disclosure of documents and inspection
- Is further info. required to clarify a party’s case?
- Costs of CMC
- Consider ADR

Question 15

Costs management - Definition

Answer 15

It enables the court to manage both the steps to be taken and the costs to be incurred by the parties in multi-track cases. The aim is to ensure that future costs are reasonable and do not become disproportionate by determining what actions should be taken in the proceedings and at what expense

Question 16

Costs management - Costs budget

Answer 16

Costs are managed by the parties being required to provide a costs budget in the prescribed form. This should consist of:
- A detailed breakdown of the costs and disbursements already incurred
- An estimate of future costs and the assumptions on which those are based for the future phases of the proceedings

Question 17

Costs management - Costs budget - When must they be filed?

Answer 17

Cost budgets must be filed:
- With the directions questionnaire for claims of less than £50,000
- No later than 21 days before the first CMC for all other claims

Question 18

Cost management order

Answer 18

Such an order is imposed unless the judge is satisfied that the litigation can be conducted justly and at proportionate cost. In the order the court will:
- Record the extent to which an incurred or budgeted costs are agreed between the parties
- In respect of the budgeted costs that are not agreed, record the court’s approval after making appropriate revisions

Question 19

Cost management order - Consequences

Answer 19

The consequence is that the parties are tied to their costs budget figures even if the litigation proves far more expensive than anticipated. If there is no costs management order there is more flexibility when dealing with costs.

Question 20

Court sanctions - Ultimate sanction

Answer 20

The ultimate sanction of striking out a party’s case so that their claim or defence comes to an immediate halt. The 2 most common scenarios where the court may exercise this power are:
- The statement of case discloses no reasonable grounds for bringing or defending the claim
- There has been a failure to comply with a rule, practice direction or court order

Question 21

Courts sanctions - Other sanctions

Answer 21

• Costs - a common sanction is to require the party in default to pay the other party’s additional costs on an indemnity (penalty) basis
• Interest - Orders could be made increasing or reducing the interest payable on any damages
• The unless order - if a party has not taken a step in the proceedings in accordance with a court order an application may be made to the court for an unless order

Question 22

Relief from sanctions - General rule

Answer 22

Unless the sanction is the payment of costs in which case the party in default will have to appeal against the order, R. 3.9(1) will apply

Question 23

Disclosure of documents - Small claims track

Answer 23

The usual direction is that each party shall at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents on which they intend to rely at that hearing

Question 24

Disclosure of documents - Fast track

Answer 24

An order for standard disclosure will invariably be made

Question 25

Disclosure of documents - Multi-track

Answer 25

Although standard disclosure is usually ordered the court may tailor the order to the requirement of the particular case taking account of the importance of the issues and the complexity fo the matter. Parties must compile a disclosure report and they must serve it no less than 14 days before the first CMC.

Question 26

Standard disclosure

Answer 26

Requires a party to disclose:
- The documents on which they rely
- The documents which adversely affect their own case, adversely affect another party’s case and support another party’s case. The duty to disclose is limited to documents in the party’s control.

Question 27

The duty to serve

Answer 27

A party is required to make a reasonable and proportionate search for all documents that:
- Adversely affect their own case
- Adversely affect another party’s case
- Support another party’s case

Question 28

How is disclosure made?

Answer 28

Once the party has gathered together the documents they are disclosed by way of a list and this is achieved by the completion of Form N265. Part 1 - list of documents within the party’s control and which they do not object to the other party inspecting. Part 2 - documents which are in the party’s control but where there is an objection to inspection. Part 3 - documents no longer in the party’s control.

Question 29

Withholding inspection of documents - Legal professional privilege - Definition

Answer 29

There are some instances where a party can legitimately withhold documents and this is usually because they come within the definition of legal professional privilege. Such documents must be disclosed in the list but there are 2 key differences:
- The other parties cannot inspect them
- They are described generically

Question 30

Withholding inspection of documents - Legal professional privilege - Legal test

Answer 30

Only legal advisors can fall under this. Advice privilege only applies where the sole or dominant purpose of the communication is to seek or to give legal advice.

Question 31

Withholding inspection of documents - Litigation privilege

Answer 31

3 distinct aspects which must be satisfied. The document must be a communication:
- Passing between the client or lawyer and a third party
- Which came into existence when litigation was contemplated or ongoing
- Which was produced with a view to the litigation either for the sole or dominant purpose of giving or receiving legal advice in regard to it or for obtaining evidence to be used in the litigation

Question 32

The right of inspection

Answer 32

Having received the opponent’s list the party is entitled to inspect documents contained in Part 1. The request to inspect must be made in writing and granted within 7 days.

Question 33

Specific disclosure

Answer 33

If the disclosure appears inadequate an application may be made for specific disclosure. This could request an order that the party:
- Carry out a more extensive search
- Disclose any further documents located as a result of that search
- Disclose specific document that the party would have expected to see

Question 34

Pre-action disclosure

Answer 34

A party may issue an application for pre-action disclosure where they are unsure as to the strength of their case so they can then make an informed decision as to whether to issue proceedings against the defendant

Question 35

Non-party disclosure

Answer 35

When proceedings have commenced a party can apply for disclosure against a non-party if this would help to resolve an issue in the case. The most common use of this procedure is where a party indicates in their list of documents that they no longer have a document in their possession, but that X does. The other party may then write to X asking for a copy of the document. If X refuses to supply that copy voluntarily, an application may be made for non-party disclosure against X.