Case Management, Sanctions and Striking Out (Syllabus 13) Flashcards
What is the scope of the small claims track?
the value of the claim is not more than £10,000 and the value of any claim for damages for personal injuries is not more than £1,000
What do damages for personal injuries include?
damages claimed as compensation for pain, suffering and loss of amenity.
What is the normal track for any claim for not more than £10,000?
the small claims track
What is the scope of the fast track?
for proceedings issued on or after 6th April 2009, of not more than £25,000, and
for proceedings issued before 6th April 2009 of not more than £15,000.
What factors must appear for the fast track to be the normal track?
- value of the proceedings is not more than £25,000
- the trial is likely to last for no longer than one day, and
- oral expert evidence is limited to (one expert per party per expert field and expert evidence in two fields)
When is the multi-track the normal track?
For any claims for which the small claims or fast track is not the normal track
When will the court allocate a claim to a track?
when all parties have filed their directions questionnaires or when giving directions pursuant to rule 26.
When will the court allocate a claim to a track if the claim has been stayed?
at the end of period of stay
If a claim is referred to the Mediation Service and the court does not receive notification in writing that settlement has been agreed when will the claim be allocated to a track?
no later than 4 weeks from the date on which the last directions questionnaire was filed.
Does the court have to hold an allocation hearing?
Only if it is necessary
Can the court allocate a claim to the small claims track if it includes a claim by a tenant against his landlord for harassment or unlawful eviction?
No
What matters must the court consider when allocating a claim to a track?
(1) the financial value of the claim
(2) the nature of the remedy sought
(3) the likely complexity of the facts, law or evidence
(4) the number of parties or likely parties
(5) the value of any counterclaim or other Part 20 claim and the complexity of matters relating to it
(6) the amount of oral evidence which may be required
(7) the importance of the claim t persons who are not parties to the proceedings
(8) the views expressed by the parties and
(9) the circumstances of the parties.
What will the court disregard when assessing the financial value of a claim?
(1) any amount not in dispute
(2) any claim for interest
(3) costs; and
(4) contributory negligence
If two claimants have started a claim against the same defendant using the same claim form and each claimant has a claim against the defendant separately how will the court consider the financial value of the claim?
each claimant will be considered separately.
What will the court serve when it has allocated a claim to a track?
a notice of allocation on every party.
Can the court re-allocate a claim?
Yes
How will the court determine what amounts are in dispute?
(1) any amount for which the defendant does not admit liability is in dispute.
(2) any sum in respect of an item forming part of the claim for which judgment has been entered is not in dispute.
(3) any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute.
(4) any sum offered by the defendant which has been accepted in satisfaction of any item which forms a distinct part of the claim is not in dispute.
How will the court deal with the value of the case if the case involves more than one money claim?
the court will not aggregate these, instead it will generally regard the largest of them as determining the financial value of the claims.
How long is a day of trial?
5 hours
Is the fact that the trial might last longer than one day a conclusive reason not to allocate the claim to the fast track?
No but it is a valid consideration
What can a party do if they are dissatisfied with where the court has allocated the claim?
they can appeal or apply to the court to re-allocate the claim.
When would a party appeal the decision of allocation?
when the order was made at a hearing at which he was present or represented or of which he was given due notice
When would a party apply to the court to re-allocate the claim?
In any case other than where he was at the hearing, represented or given due notice.
What are clear days?
the day on which the period begins and if the day it ends is defined by reference to an event, the day on which that event occurs are not included.
Where the specified period is 5 days or less what days do not count when counting time?
(1) Saturday
(2) sunday; and
(3) bank holiday, Christmas Day or good Friday.
What happens if the period for doing any act at the court office ends on a day that the court office is closed?
the act will be deemed to be done in time if done on the next day on which the court office is open.
Can time limits be varied by parties?
Yes unless a rule or PD states otherwise, the parties can agree in writing to vary time limits
What time limits cannot be varied by written agreement?
(1) sanctions have effect unless defaulting party obtains relief
(2) variation of case management timetable (fast tack)
(3) variation of case management timetable (multi-track)
What are the court’s general powers of management?
the court may-
(1) extend or shorten the time for compliance with any rule, PD or court order.
(2) adjourn or bring forward a hearing
(3) require that any proceedings in the High Court be heard by a Divisional Court of the High Court
(4) require a party or a party’s legal representative to attend the court
(5) hold a hearing and receive evidence by telephone or by using any other method of direct oral communications
(6) stay the whole or part of any proceedings or judgment
(7) consolidate proceedings
(8) try two or more claims on the same occasion
(9) separate trial of any issue.
What are the powers of case management when there are unrepresented parties?
this rule applies in any proceedings where at least one party is unrepresented.
when the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented and do its best to further the overriding objective.
Can the court exercise its power on its own initiative?
Yes
What can the court do when it proposes to make an order of its own initiative?
(1) it may give any person likely to be affected by the order an opportunity to make representations and
(2) where it does so it must specify the time by and the manner in which the representations must be made.
If the court makes an order of its own initiative how much notice should they give the parties of any hearing?
at least 3 days’ notice
What happens where the court makes an order which includes a term that the statement of case shall be struck out if a party does not comply with an order and the party against whom that order is made does not comply with it?
A party may obtain judgment with costs by filing a request for judgment if - the order relates to the whole of a statement of case and where the party wishing to obtain judgment is the claimant the claim is for a specified amount of money, an amount of money to be decided by the court, delivery of goods.
What is the general power of the court to rectify matters where there has been an error of procedure?
the error does not invalidate any step taken in the proceedings unless the court so orders; and the court may make an order to remedy the error.
What is the purpose of costs management?
the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective
Who must file and exchange costs budgets?
all parties except litigants in person
When must the costs budget be filed and exchanged?
(1) when the value on the claim form is less than £50,000 with their directions questionnaire; or
(2) in any other case, not later than 21 days before the first case management conference.
When must the parties file an agreed budget discussion report?
No later than 7 days before the first case management conference
If there is a litigant in person are they expected to prepare a budget?
No but they must be provided with a copy of the other party’s budgets.
What is the consequence of failing to file a budget?
the party will be treated as having filed a budget comprising only the applicable court fees.
What is a costs management order?
where costs budgets have been filed and exchanged the court will make a costs management order unless it is satisfied that the litigation can be conducted justly and at a proportionate cost in accordance with the overriding objective without such an order being made.
Can the court make a costs management order, and if it can when?
Yes, it has a discretion to make such an order at any time
When must a party revise its budgeted costs?
when there is a significant development in the litigation that warrants revisions of the budget upwards or downward
What must a party do if they wish to revise their budget?
(1) serve particulars of the variation proposed on every other party;
(2) confine the particulars to the addition costs occasioned bu the significant development
(3) certify that the additional costs are not included in any previous budgeted costs or variation.
What must the revising party submit to the court?
the particulars of variation with the last approved/agreed budget with an explanation of the points of difference if they have not been agreed
What are the court’s powers regarding the variation of costs?
the court may approve, vary or disallow the proposed variations
What is a costs management conference?
any hearing which is convened solely for the purpose of costs management is referred to as a “costs management conference”:
How should costs management conferences be conducted?
where practical by telephone or in writing
What will the court have reared to when making any case management decisions?
any available budgets of the parties and the costs involved in each procedural step.
What can the court not do in relation to costs incurred up to and including the date of the costs management hearing?
the court cannot approve costs incurred up to and including the date of any costs management hearing but may comment on those costs and take them into account when considering the reasonable and proportionality of budgeted costs
How will the court assess costs where a costs management order has been made?
costs will be assessed on the standard basis
What will the court do when assessing costs on the standard basis?
the court will-
(a) have regard to the receiving party’s last approved or agreed budgeted costs for each phase of the proceedings
(b) not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so; and
(c) take into account ant comments made and recorded on the face of the order.
When is the court likely to misapply costs management?
when the claimant has a limited or impaired life expectation (5 years or less remaining).
When might an order for the provision of costs budgets be particularly appropriate?
(1) unfair prejudice petitions
(2) disqualification proceedings
(3) applications under TOLATA
(4) claims pursuant to the Inheritance Act
(5) any Part 8 or other claims or applications involving a substantial dispute of fact and/or likely to require oral evidence; and
(6) personal injury and clinical negligence cases where the value of the claim is £10 million or more
What documents should be lodged for costs budgeting purposes?
save in exceptional circumstances the parties are not expected to lodge any documents other than Precedent H and the budget discussion report. Precedent T is to be used when the budget is being varied
What must be the format of a budget?
a budget must be in the form of Precedent H. It must be in landscape format with an easily legible typeface.
In any case where a party’s total costs do not exceed £25,000 or the value of the claim as stated on the claim form is less than £50,000, the parties must only use the first page of Precedent H.
Can the time spent preparing the costs budget be claimed in the draft budget?
No
What is the contingent cost section of the form for?
anticipated costs which do not fall within the main categories set out in the form go into this section
Are written assumptions normally required by the Court in cases where the parties are only required to lodge the first page?
No
What must the budget discussion report set out?
(1) those figures which are agreed for each player
(2) those figures which are not agreed for each phase; and
(3) a brief summary of the grounds of dispute
What will the court consider when reviewing budgeted costs?
whether the fall within the range of reasonable and proportionate costs.
What will a court officer do if a defendant files a defence?
they will provisionally decide the track which appears to be most suitable for the claim; and serve on each party a notice of proposed allocation
What will the notice of proposed application do?
(1) specify any matter to be complied with by the date specified in the notice
(2) require the parties to file a completed directions questionnaire and serve copies on all other parties
(3) state the address of the court or the court office to which the direction questionnaire must be returned
(4) inform the parties how to obtain the directions questionnaire; and
(5) if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposes directions by the date specified in the notice.
When will the court serve the notice of proposed application when there are two or more defendants?
either when all of them have filed a defence or when the period for the filing for the last defence has expired, whichever is sooner
If a notice of proposed allocation is served what must the parties serve and when?
the documents required by the notice by no later than the date specified-
(1) small claims track - 14 days
(2) fast track/multi track - 28 days
Can the time for complying with a notice of proposed allocation be varied by agreement of the parties?
No
If the claim is a transfer of money claim in the County Court and a party does not comply with the date specified on the notice what will the court do?
serve a further notice on the party requiring them to comply within 7 days and if that party fails to comply the party’s statement of case will be struck out without further order from the court.
Can the parties request a stay during the case management phase?
yes this can be requested when filing the completed directions questionnaire.
How long will the proceedings be stayed for if the parties request a stay?
1 month and the court will notify the parties accordingly
If the court considers that a stay would be appropriate can they direct that the proceedings should be stayed?
Yes
where the court stays proceedings under CPR r.26.4 what is the duty of the claimant?
to inform the court if a settlement is reached.
What is the scope of CPR r.26.4A?
it applies to claims started in the County Court which would normally be allocated to the small claims track, it does not apply to any RTA, PI or housing disrepair claim.
What is the meaning of the Mediation Service?
the Small Claims Mediation Service operated by HMCTS
If all parties consent on their directions questionnaires to the claim being referred to mediation what will happen?
the claim will be referred to the Mediation Service
if a claim to which CPR r.26.4A applies is settled what happens?
proceedings will be stayed with permission to apply for judgment for the unpaid balance of the outstanding sum of the settlement agreement or the claim to be restored for hearing of the full amount claimed. UNLESS the parties have agreed that the claim is to be discontinued or dismissed.
On the fast track, what matters are dealt with by directions?
(1) disclosure of documents
(2) service of witness statements; and
(3) expert evidence
What can the court do if they decide not to direct standard disclosure?
direct that no disclosure take place or specify the documents or the classes of documents which the parties must disclose.
Can the parties vary the case management timetable on the fast track?
Yes in some circumstances
How can a party vary the case management timetable?
(1) a party must apply to the court to vary the date fixed for-
(a) the return of the pre-trial checklist
(b) the trial; or
(c) the trial period.
Any other dates can be varied by written agreement between the parties.
What is the scope of CPR r.29?
CPR r.29 contains general provisions about the management of cases allocated to the multi-track and applies only to cases allocated to that track
What directions will the court give in cases on the multi-track?
it will give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the trial; or
fix a case management conference or a pre-trial review.
When will the court fix the trial date on the multi-track?
as soon as is practiable
When might the court fix a case management conference or pre-trial review for a case on the multi-track?
any time after the claim has been allocated.
Who must attend the case management conference or pre-trial review?
If a party has a legal representative, a representative who is familiar with the case and has sufficient authority to deal with any issues tat are likely to arise.
What steps must be taken by parties on the multi-track?
they must endeavour to agree appropriate directions for the management of the proceedings and submit agree directions to the court at least 7 days before any CMC.
How can parties on the multi-track vary a case management timetable?
they must apply to the court to vary the sate which the court has fixed for-
- a case management conference
- a pre-trial review
- the return of a pre-trail check list
- the trial; or
- the trial period
Is a pre-trial checklist always necessary on the multi-track ?
no, if the court considers the claim can proceed to trial without the need for a pre-trial checklist then they will not send one.
When must the pre-trial checklist be completed and filed?
on the date specified by the court
what happens of neither party files a completed pre-trial checklist?
the court will order that unless a completed pre-trial checklist is filed within 7 days fro, service of that order, the claim, defence and any counterclaim will be struck out.
When will the court serve notice of a pre-trial review?
at least 7 days before the date fixed for the hearing
When will the court set a trial timetable on the multi-track?
As soon as practicable after each party has filed a completed pre-trial checklist, the court held a listing hearing or the court has held a pre-trial review.
How will the trial be conducted on the multi-track?
unless the trial judge directs otherwise, the trial will be conducted in accordance with any order previously made.
What are the hallmarks of the multi-track?
the ability of the court to deal with cases of widely differing values and complexity; and the flexibility given to the court in the way it will manage a case in a way appropriate to its particular needs.
Who will normally deal with case management?
(1) a Master in cases proceeding in the Royal Courts of Justice
(2) a District Judge in cases proceeding in a District Registry of the High Court, and
(3) a District Judge or a Circuit Judge in cases proceeding in the County Court
Upon allocation of a case to the multi-track, what will the court consider?
whether it is desirable or necessary to hold a case management conference straight away or whether to give directions of its own initiative.
When do sanctions have effect?
where a party fails to comply with a rule, PD or court order, any sanction has effect unless the party in default applies for and obtains relief from the sanctions.
Where the sanction is the payment of costs, how can the party in default obtain relief?
by appealing the order of costs.
Where a rule, PD or court order requires a party to do something within a specified time can the time be extended?
Yes, unless the court orders otherwise. It can be extended by prior written agreement of the parties for up to a maximum of 28 days, provided that such an extension doesn’t put a trial date at risk.
What will the court consider when there is an application for relief from sanctions?
all the circumstances of the case, so as to enable it to deal justly with the application including the need-
(a) for litigation to be conducted efficiently and at a proportionate cost; and
(b) to enforce compliance with rules, PDs and orders.
What is necessary when a party applies for relief from sanctions?
an application must be supported by evidence
What case contains the test for relief from sanctions?
Denton
What is the three-stage test in Denton?
(1) seriousness/significance of the breach
(2) why did the default occur?
(3) evaluate all the circumstances of the case.
What is a good measure of whether the breach is serious/signficant?
whether the breach imperils the trial date.
Do all the stages of the Denton test have to be satisfied?
Yes, if any of them do not apply then the applicant should be granted relief.
What does the third stage of Denton require consideration of?
all the circumstances of the case, especially the overriding objective and the need to deal with cases proportionately.
What should parties do if they think another party has defaulted?
be prepared to agree to a 28 day extension and not take advantage of mistakes by other parties.
Can the Denton principles be used in an application to set aside a default judgment?
Yes, as default judgment is essentially a sanction.
When can a court strike out a statement of case?
if it appears to the court that-
(a) the statement of case discloses no reasonable grounds for bringing or defending the claim
(b) the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, PD or court order
What can the court do when they have struck out a claimant’s statement of case, the claimant has been ordered to pay costs to the defendant and before the claimant pays those costs starts another claim?
the court may on the application of the defendant stay that other claim until the costs of the first claim have been paid.
What should the court do if they strike out a claim and deem it to be totally without merit?
they should record that fact and must at the same time consider whether it is appropriate to make a civil restraint order.
What is included as a statement of case, for the purposes of strike out?
claim form, PoC, defence, counterclaim, Part 20 claim or a reply to a defence.
When is an order for strike out usually made?
during the pre-trial stages of proceedings.
When will a PoC be deemed to disclose no reasonable grounds for brining a claim?
where it sets out no facts indicating what the claim is about; those claims which are incoherent and make no sense; and those claims which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.
When will a defence be deemed to disclose no reasonable grounds for defending the claim?
where it consists of a bare denial, or it sets out no coherence statement of facts, or the facts it sets out while coherent would not even amount to a defence in law to the claim.
Does striking out a claim affect the right of access to a court?
No.
What does the term “abuse of court process” mean?
“using that process for a purpose or in a way significantly different from its ordinary and proper use”
In all cases of abuse of process, should the statements of case be striked out?
No, it should only be struck out if this supports the overriding objective.
What are the powers of the court to strike out statements of case where matters should have been raised in previous proceedings?
the court can strike these out under abuse of process
How will the court decide whether an issue should have been raised in previous proceedings?
by adopting a broad merit-based judgment
What is a collateral attack upon an earlier decision?
the initiation of proceedings for the purposes;ose of mounting a collateral attack upon a final decision against the plaintiff
Can the court make a conditional strike out order?
Yes, if a party does not follow a particular rule, PD or procedure then the statement of case will be struck out.
What is the scope of CPR Part 38?
CPR Part 38 is about discontinuance
Is a claimant who claims more than one remedy, and subsequently abandons his claim to one or more of the remedies but continues with his claim for the other remedies treated as discontinuing all or part of a claim?
No
When can a claimant discontinue all or part of a claim?
at any time
When does a claimant need to obtain the permission of the court?
if the court has granted an interim injunction or any party has given an undertaking to the court.
What happens if the claimant has received an interim payment but wants to discontinue the claim?
he can discontinue the claim but only if the defendant who made the interim payment consents in writing or the court gives permission.
Can a claimant discontinue a claim if there is more than one claimant?
The claimant may not discontinue unless every other claimant consents in writing or the court gives permission.
What is the procedure for discontinuing a claim?
to discontinue a claim or part of a claim a claimant must-
(1) file a notice of discontinuance; and
(2) serve a copy of it on every other party to the proceedings.
Is there a right to apply to have a notice of discontinuance set aside?
yes the defendant may apply to have the notice of discontinuance set aside.
When does a defendant have to apply to have a notice of discontinuance set aside?
the defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.
When does discontinuance come into effect?
on the date when notice of discontinuance is served.
Who has liability for costs where the claim is discontinued?
unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant has incurred on or before the date on which notice of discontinuance was served.
If a claimant discontinues a claim, can they make another claim against the same defendant?
Yes but the claimant needs the permission of the court if he discontinued the claim after the defendant filed a defence, and the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.
