Case Management, Costs Management, and Track Allocation

Question 1

how does the court actively manage the case? (6)

Answer 1

• encourage parties to settle
• fixing timetables
• imposing sanctions to ensure compliance with rules like ordering a party to pay costs or striking out SoC
• extend / shorten time for compliance with rules, PD, or orders
• stay the whole / part of proceedings / judgement
• order any party to file and serve a costs budget and make cost management orders

Question 2

what is the procedure for allocation and what docs need to be filed? (5 steps)

Answer 2

1. court sends the NOTICE OF PROPOSED ALLOCATION = provisionally allocates to a track + gives dates to file and serve the following
2. parties file DIRECTIONS QUESTIONNAIRE
3. parties file PROPOSED DIRECTIONS (if provisionally allocated to fast or multi track)
4. court allocates to track (after hearing if needed) and serves the NOTICE OF ALLOCATION
5. court will give directions (small claims / fast) or fix a CMC (multi)

Question 3

what info must parties provide in the directions questionnaire? (9)

Answer 3

1. pre-action protocol = confirm that parties complied and explain why they did not comply
2. settlement = can request a stay to settle
3. disclosure = info on future prep including extent and type of disclosure
4. witness = names of witnesses and what they help prove
5. expert evidence = if party wants to rely on expert evidence
6. trial = estimate time needed for trial
7. costs = cost budget in multi track cases
8. directions = parties must try to agree directions and state if they agreed or not
9. other = what court parties think claim must be heard in, what track, what interim apps

Question 4

how does the court decide on allocation?

Answer 4

1. identifies the normal track for the claim as a starting point (in the notice of proposed allocation)
2. considers if it should depart from the normal track, having regard to the 9 CPR factors (holding a hearing with submissions from parties if necessary)

court then serves the notice of allocation

Question 5

what claims would the small claims track be the normal track for? (2)

Answer 5

1. any claim with value of max £10,000
2. any PI claim with value of max £10,000 and damages claim is max:
   - £5,000 in a PI claim arising from a road traffic accident
   - £1,500 in any other PI claim

Question 6

what claims would the fast track be the normal track for? (3 requirements)

Answer 6

1. value of claim is not more than £25,000, and
2. the trial is likely to last no longer than 1 day, and
3. oral expert evidence at trial is limited to:
   - 1 expert per party in relation to any expert field, and
   - expert evidence in two expert fields

Question 7

what claims would the multi track be the normal track for?

Answer 7

any claim for which the small claims track or the fast track is not the normal track

Question 8

can the court depart from the ‘normal track’?

Answer 8

yes - the normal track is only a starting point

the value of the claim is not the only determinative factor

the CPR provides 9 factors which must be considered holistically and value is only 1

Question 9

what are the 9 factors under the CPR which the court must consider when deciding on the track for a claim?

Answer 9

1. financial value
2. nature of remedy sought
3. likely complexity of the facts, law, or evidence
4. number of parties or likely parties
5. value of any counterclaim or party 20 claim = court looks at value of largest claim not the aggregate of the claims
6. amount of oral evidence which may be required
7. importance of the claim to any persons who are not parties
8. views expressed by parties
9. circumstances of the parties

(basically, the more complex the claim is, the more likely it is allocated to multi track)

Question 10

what are the features of a small claims track case management? (5)

Answer 10

• fewer formalities
• party unlikely to recover substantial costs from opponent (only fixed costs, court fees, and witness expenses)
• simplified directions
• no order for disclosure or exchange of witness statements
• parties must file and serve copies of docs they intend to rely on at least 14 days before the hearing

Question 11

what are the features of a fast track case management?

Answer 11

• trial date is approximately 30 weeks after the allocation notice
• court gives directions after the DQ without a CMC
• trial usually held in County Court
• trial does not last more than 1 day = there may be no opening speeches and limited oral evidence

Question 12

what is a case management conference and when is one held?

Answer 12

a CMC is held after the notice of proposed allocation allocates the case to the multi track

the purpose of a CMC is to identify the issues and narrow them, and give directions

used in more complex cases (in simpler multi track cases, the court can give directions without CMC)

Question 13

what issues are considered at a CMC? (10)

Answer 13

1. Whether the claim is clear
2. Whether any SoC need to be amended
3. What disclosure is required if any
4. What expert evidence is required, and how and when it should be obtained
5. What factual evidence (e.g., witness statements) should be provided for
6. Whether any further information is required
7. Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues
8. The suitability of the case for settlement
9. Estimated costs of litigation and whether this is proportionate
10. The steps the parties have already taken and compliance with previous directions / orders

Question 14

who should attend a CMC, and what happens if they do not?

Answer 14

legal representatives must attend the CMC = they must be familiar with the case AND have authority to deal with issues likely to arise (e.g., discussing directions)

if they do not attend and the CMC is postponed as a consequence = likely to result in a wasted costs order which the legal rep must pay

(court may also order the client to attend)

Question 15

what is the procedure for cases on the multi track? (5 steps)

Answer 15

1. Disclosure report = filed and served at least 14 days before the first CMC
2. Draft directions = at least 7 days before any CMC
3. Consider if a case summary will be useful at the CMC
4. File any applications that a party wants to make
5. CMC takes place = court makes directions

Question 16

what is the disclosure report?

Answer 16

in multi track = both parties must file and serve a disclosure report at least 14 days before the first CMC

the report includes:
- describe what docs exist or may exist that are or may be relevant to matters in issue
- describe where and with whom those docs are
- describe how electronic docs are stored (consider using electronic documents questionnaire)
- estimate costs involved in standard disclosure
- indicate if party wants other than standard disclosure
- verified by statement of truth

Question 17

what are draft directions?

Answer 17

in multi track = parties must file proposed directions at least 7 days before any CMC

• parties are obliged to try to agree directions = if they do, they must submit agreed directions and court may cancel the CMC
• where parties do not agree, court can hear submissions from representatives on directions

Question 18

what is a case summary?

Answer 18

case summary = short doc (max 500 words) prepared by C to assist the court to understand the issues

contains = chronology of the claim, factual issues agreed and in dispute, and the nature of evidence needed

parties are obliged to consider if a case summary will be useful at the CMC - but not necessary

Question 19

what is required by parties under the cost management regime?

Answer 19

1. must prepare BUDGETS = file and exchange 21 days before the first CMC
2. must prepare BUDGET DISCUSSION REPORTS = file and exchange 7 days before the first CMC

then the court considers these docs at the first CMC (cost and case management conference) or at a hearing only for cost management

Question 20

what is a budget?

Answer 20

includes:
1. costs already incurred
2. estimated REASONABLE AND PROPORTIONATE FUTURE COSTS that a party intends to incur in each stage of the proceedings
3. solicitor costs
4. disbursements

Filed and exchanged 21 days before first CMC

it relates to what a party hopes to recover from the other side

Question 21

what is the budget discussion report?

Answer 21

parties are obliged to discuss budgets with each other in order to agree on costs where possible

states the costs which are agreed and not agreed, and why there is dispute as to costs

filed and exchanged 7 days before first CMC

Question 22

after the court considers the budget and the budget discussion report, what does this impact? (2)

Answer 22

1. the court must have regard to a cost budget and costs involved in each procedural step when making any case management decisions
2. the court can make cost management orders

Question 23

what is contained in a cost management order?

Answer 23

1. records agreed figures by the parties = these cannot be changed by the court
2. where figures are not agreed, the court decides the budget for each party for each stage in the proceedings = based on what are reasonable and proportionate costs

Question 24

what is the impact of a cost management order?

Answer 24

the budget sets the proportionate costs that can be incurred in the future (but the party can still pay more for them)

BUT: when it comes to assessing costs on the standard basis in the future, the party will not be able to recover more than what is approved by the CMO unless there is good reason to do so

(also the party cannot recover more than it actually spent if less than the CMO approved amount)

Question 25

how are costs assessed if they were incurred before writing the budget or before a CMO is made?

Answer 25

they are assessed in the normal way = the court considers if they are reasonably incurred (standard and indemnity basis) and proportionate (standard basis only) and allows recovery if they are

compare to future costs approved by a CMO = will not be departed from unless there is good reason

Question 26

when will the court not make a costs management order? how will costs be assessed then?

Answer 26

if it thinks litigation can be conducted justly and proportionately without one

assessing costs is less strict = court is allowed to depart from the budget

Question 27

what is the consequence if a party fails to file a cost budget 21 days before the first CMC?

Answer 27

sanction = party automatically treated as having filed a cost budget comprising of only the applicable court fees

if the court then approves this automatic budget by a CMO, the starting point is that the party can only be able to recover applicable court fees

party can apply for relief from sanctions

Question 28

if D budgeted a certain amount for revising C’s witness statements, but C then serves double the amount of witness statements it indicated in the disclosure report so that D will go over their budget, what can D do?

Answer 28

D should amend the budget and submit this to the other party for agreement

D should submit the amended budget to court or consideration:
- the court will allow revisions to address significant developments in litigation
- the court will not allow revisions to correct mistakes in the budget

Question 29

when does the cost management regime apply?

Answer 29

multi-track cases (valued at less than £10 million)

not fast or small claims track

Question 30

what docs must be filed and served by parties at the case management / before a CMC?

Answer 30

• directions questionnaire (all tracks)
• disclosure report (multi and fast)
• draft directions (multi and fast)
• budget (multii)
• budget discussion report (multii)