Case Management, Sanctions, and Striking Out

Question 1

Which CPR Part covers track allocation?

Answer 1

Part 26

Question 2

Different tracks and their corresponding CPR parts.

Answer 2

Small claims - Part 27
Fast track - Part 28
Multi track - Part 29

Question 3

When does track allocation begin (and in what form)?

Answer 3

When defendant files and serves a defence. This leads to provisional allocation.

Question 4

When does provisional allocation happen when there are two or more defendants?

Answer 4

Either when the last one of them files a defence, or when the period for filing the last defence has expired.

Question 5

How does provisional allocation work?

Answer 5

A court officer (not a judge) provisionally allocates defended claims to one of the tracks. Provisional allocation is based largely on the value of the claim. The court sends the parties a notice of provisional allocation.

Question 6

Basic track allocation rules

Answer 6

Small claims track: value not more than £10,000

Fast track: value over £10,000 to not more than £25,000

Multi track: value over £25,000

[C.f. what the court will disregard]
[C.f. also exceptions to the basic track allocation rules]

Question 7

When looking at value, the court will disregard

Answer 7

Any amount not in dispute
Interests
Costs
Contributory negligence

Question 8

Other facts (other than value of claim) which bear on the track decision.

Answer 8

Value of any counterclaim and/or Part 20 claim
Nature of the remedy sought
Importance of the claim to non-parties
Complexity of facts, law, or evidence
Number of parties
Amount of oral evidence that may be required at trial
Views expressed by the parties
Circumstances of the parties

The court MUST take these matters into account; financial value of claim is only one relevant factor (albeit a general indicator of likely case management needs).

Question 9

Exceptions to the basic track allocation rules

Answer 9

Low value personal injury and landlord & tenant claims will be allocated to the fast track rather than the small claims track if:

PI claim for damages for pain, suffering, and loss of amenity valued at over £1000 (even if the overall value of the claim is under £10,000).

Landlord and tenant claim with cost & repair damages valued at over £1000.

Landlord and tenant claim against a landlord.

Question 10

Other usual features of a fast track claim (relevant to allocation)

Answer 10

The trial is likely to last no longer than one day; and

Oral expert evidence at trial will be limited to one expert per party in relation to any field and expert evidence in 2 expert fields.

Question 11

What is a directions questionnaire and what is its purpose?

Answer 11

A form which the court requires all parties to complete. Its purpose is to provide the court with enough information for it to make an informed decision about track allocation and to be able make case management directions.

Question 12

What does the directions questionairre check?

Answer 12

Whether parties have complied and with pre-action practice directions and protocols.

Parties are reminded of the need to make efforts to settle the case and are expressly asked whether they would like the court to order a stay for ADR purposes.

Expects the parties to have made quite a detailed assessment of their claims: Litigants need to consider consider whether the provisional track allocation is acceptable and if not, why not, what directions for disclosure they wish the court to make, whether expert evidence is required, and, if so, the justification for and likely cost of it, and what witnesses of fact they wish to call. They are also required to estimate the length of the trial.

Question 13

By when do the have to file and serve (on all parties) the completed directions questionnaire?

Answer 13

By the date specified in the notice of allocation.

In small claims cases this date must be at least 14 days after deemed service of the notice.

In fast track and multi track claims, at least 28 days.

Question 14

What happens if there is a failure to file and serve the completed directions questionnaire by the requisite date?

Answer 14

In County Court money claims, the court will send a notice to the party requiring compliance in a further 7 days. Further non-compliance results in the automatic striking out of the claim or defence (depending who is in default).

In High Court money claims for specified amounts, court will make such order as it considers appropriate, including:
Order for directions
Order for striking out of the claim
Order striking out defence and entering judgment
Listing a case management conference

For other claims, there is no prescribed sanction.

Question 15

What does actual (rather than provisional) track allocation require, and when is it done? Who does it? What happens?

Answer 15

Actual (rather than provisional) track allocation requires a court order so is typically done after directions questionnaires are received. Typically done by District Judges in the County Court or Masters in the High Court. Judge makes track allocation decision and gives directions simultaneously with the track allocation (timetable with directions until trial, aimed towards efficiency), or lists the case for a case management conference.

Question 16

Court is [?] in its ability to make case management directions

Answer 16

Unfettered

Question 17

Pre-trial checklist

Answer 17

As the trial date approaches, the parties will be required to file a pre-trial checklist by a specified date. This assist the court in giving directions for the conduct of the trial.

Question 18

What can the court do if the pre-trial checklist is not filled in on time?

Answer 18

Court can strike out a claim, defence, or counter-claim if the pre-trial checklist is not filed in time.

Question 19

What are key dates?

Answer 19

Some of the dates in the timetable directions are considered so important that the parties themselves are not permitted to agree amongst themselves to vary them. If the parties require further directions or a variation, can ask the court to list a further case management conference.

Question 20

Four kinds of case management hearing

Answer 20

Case management conferences
Costs management conferences
Listing hearings
Pre-trial reviews

Question 21

Who do case management hearings take before?

Answer 21

A ‘procedural judge’ usually a District Judge (County Court) or a Master (High Court), but sometimes a Circuit or HC judge.

Question 22

‘Docketing’

Answer 22

Multi-track cases may be ‘docketed’. This means that all interim applications will be heard by the same judge, and sometimes the trial too. In particular, this happens in specialist courts. For example, in the TCC, the aim is for one HC judge to deal with all the case management matters and then any trial.

Question 23

What are case management conferences?

Answer 23

Formal hearings before a procedural judge, often lasting 30 minutes or one hour. Basically designed to ensure the case is dealt with efficiently and can progress.

Question 24

Documents required before a CMC

Answer 24

In multi-track cases:

Agreed or proposed directions must be submitted to the court at least 7 days before the CMC [to try and avoid the hearing taking place]

Costs budgets

Budget discussion reports

Disclosure reports

Estimated costs of any expert evidence

Question 25

Case management bundle

Answer 25

In advance of a case management hearing, the claimant’s solicitor may prepare a case management bundle for use in the case management hearing.

Question 26

Who should attend a case management conference?

Answer 26

A representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend. If a lawyer with inadequate knowledge/instructions attends, the court will normally make a wasted costs order.

Question 27

What does the judge do in a CMC?

Answer 27

Considers statements of case
Allocates track (if not one already)
Checks on progress in preparing the case for trial and compliance with directions already given
Encourage as much agreement as possible between parties as to the issues in dispute and the conduct fo the case
May require parties to consider ADR
Gives directions

Question 28

Directions in fast track cases will normally involve

Answer 28

Disclosure
Service of witness statements (usually simultaneously)
Directions for expert evidence (typically a single joint expert)
Fix date or trial window (there will normally be 30 weeks between timetable directions and trial)

Question 29

In making directions, court must

Answer 29

Apply the overriding objective of dealing with cases justly and at proportionate cost
Have regard to any available costs budgets

Question 30

Avoiding case-management hearings in multi-track cases.

Answer 30

Parties are asked to attempt to agree directions and submit these to the court beforehand in order to avoid having an actual directions hearing. This will be achieved if the court considers the proposed directions suitable.

This will only be possible if the agreed directions:

1. Set out a timetable by reference to calendar dates
2. Include a provision for disclosure
3. Include provision for factual or expert evidence
4. Include a proposed trial date or period

Or the court can make directions of its own initiative without a CMC, taking the agreed directions into account.

The same principles apply to fast track, although it’s part of the ethos of that track that directions are given (on allocation or pre-trial) without the need for any hearings.

Question 31

If there is a CMC, directions are given after the parties…

Answer 31

…make submissions

Question 32

Case management timetable dates that cannot be varied between the parties

Answer 32

For fast track AND multi-track:

Return of pre-trial checklist
Trial
Trial period

For multi-track:

CMC
Pre-trial review

Question 33

Litigants in person and case management

Answer 33

For litigants in person:

Time limits and CPR requirements do apply.
Unless the rules are particularly inaccessible or obscure, they apply equally to a litigant in person.
But costs budget requirements do not apply to a litigant in person.
A lawyer has a duty not to take unfair advantage of litigants in person.

Court will help them out as fair as possible, e.g. the court will put to the witnesses questions that they consider appropriate.

Question 34

What is strike out?

Answer 34

The most draconian exercise of the court’s powers. Summary disposal of issues that don’t need full investigation at trial.

Question 35

If a defence if entirely struck out

Answer 35

There is no longer an answer to the claim and so the claimant is likely to be entitled to judgment.

Question 36

Starting point when asked to strike out

Answer 36

It is a sanction of last resort. When being asked to make a strike out order, court should consider first whether any lesser sanction is proportionate.

Question 37

Three main sets of circumstances when strikeout can be ordered (NB court not restricted to these).

Answer 37

1. Statement of case discloses no reasonable grounds for bringing or defending claim.
2. Abuse of process or likely to obstruct the just disposal of proceedings
3. Failure to comply with rule, practice direction, or court order.

Question 38

Statement of case discloses no reasonable grounds for bringing or defending claim: Relationship with no real prospect of success test for summary judgment.

Answer 38

Not exactly the same as no real prospect of success test for summary judgment. But the tests overlap and the court can exercise both powers, on the application of the parties or by its own initiative. Summary judgment and strike out applications are often combined in practice.

Question 39

Examples of cases where main reason (1) for strikeout can be ordered.

Answer 39

Where there are no facts to indicate what the claim is about, e.g. “Money owed £5000”.

Where the defence is nothing more than a bare denial.

Incoherent or makes no sense.

Where the facts, even if true, would not amount to a legally recognised case.

Question 40

Is evidence needed for strike out apps?

Answer 40

The fact that such statements of case are often defective on their face means many apps for strike out can be argued without supporting evidence. One of the biggest differences to summary judgment is that the latter must always be supported by written evidence.

Question 41

Nuance on (1) - Possible striking out of statement of case for no reasonable grounds.

Answer 41

An unwinnable case will be struck out.

It’s not appropriate to strike out a claim on a developing area of law or where there is a serious dispute about the facts.

If it can be saved by permitting or requiring amendment, then it shouldn’t be struck out.

Strikeout is not inherently contrary to Art 6, but means that caution must be exercised. A helpful question is whether the claim is genuine and serious.

Expert immunity defence no longer applies to expert witnesses, so can be the basis of strikeout application in defence to a negligence claim.

Question 42

What can the court do after strikeout?

Answer 42

On strikeout, court may make any consequential order it considers appropriate. Court has a power, on striking out one party’s statement of case, to enter judgment for other party as appropriate.

Question 43

Meaning of (2): Abuse of process or likely to obstruct the just disposal of proceedings.

Answer 43

Lord Bingham said it means using litigation process for a purpose or in a way significantly different from its ordinary and proper use. Would tend to cover things like pursuing a vendetta, seeking revenge, attempts to publicly shame, etc. But ‘abuse of process’ can also apply when there is no ill intent but the rules do not allow claim to be litigated.

Question 44

Nuance in relation to (2) (abuse of process or likely to obstruct the just disposal of proceedings).

Answer 44

Striking out for abuse has to support overriding objective. Striking out a valid claim should be a last resort.

Time-barred claim (i.e. brought outside limitation period) may be struck out as an abuse of process.

Bringing an individual claim when group litigation order is in place is not necessarily an abuse of process; there may be other ways to uphold group litigation and align the individual’s claim with it.

It is abuse of process to attempt to re-litigate something which has been finally decided in previous litigation between the parties. This is known as res judicata and covers cause of action estoppel and issue estoppel (stops an issue being re-litigated even if in a different context).

Same applies to a claim that could and should have been brought in earlier litigation. Known as the rule in Henderson. Broad, merit-based approach (why was claim not made in original proceedings); court will take all circumstances into account.

It is an abuse of process to make a collateral attack on a previous decision. Hunter v West Midlands CC. HL held that men convicted of 1974 Birmingham pub bombings could not launch civil claim against police renewing the allegations made in criminal trial that they had been assaulted by police to extract their confessions.

Question 45

Difference between (3) failure to comply with rule, practice direction, or court order in contrast to (1) and (2).

Answer 45

Problem doesn’t lie with statement of case but with way in which the claim has been conducted. Proportionality principle is important here.

Question 46

What is court likely to do instead of strike out for (3)?

Answer 46

Where e.g .D has failed to respond to a request for further info and court has made the order that they must provided it by a specific date. C can apply to have the defence struck out for failure to comply with this order by that time on that date. But because strikeout is a sanction of last resort, likely court will not strike it out straight away but make some less severe order, quite possibly an ‘unless’ order. In this context, such an order would say that the defence will be struck out unless D provides the information by a specified later time and date.

NB. Court is not required to make an unless order before ordering a strikeout. They need to consider whether strikeout is proportionate.

Question 47

What happens if a party doesn’t comply with an ‘unless’ order?

Answer 47

If D does not comply with the unless order, strikeout will take place automatically requiring D to apply for relief from sanctions. When there has been an automatic strikeout, party can get judgment by filing a request.

Other sanctions can also be embedded in an unless order. In an extreme case, an unless order might also include the sanction of a judgment being entered for a specific sum of damages despite the fact that quantum has not yet been assessed.

Question 48

Similarly to an ‘unless’ order, what could the court do?

Answer 48

Order a defaulting party to pay money into court as security for value of claim.

Question 49

Court has a power to make an order of its own initiative. How do representations from parties work?

Answer 49

Court may give anyone likely to be affected by an order the opportunity to make representations. Must give them three days notice of the hearing.

Question 50

When the court makes an order without hearing the parties, an affected party may…

Answer 50

Apply to have it set aside, varied, or stayed, and the order must contain a statement of the right to make such an application. Application must be made within such a period as may be specified by the court, or, if the court does not specify a period, not more than 7 days after the date on which the order as served on the party making the application.

NB. Applying to have it set aside is NOT the same as appealing it.

Question 51

What must the court do if it, of its own initiative, strikes out a statement of case or dismisses an application?

Answer 51

If it considers the claim to be totally without merit, the court’s order must record that fact and the court must at the same time consider whether it’s appropriate to make a civil restraint order.

Question 52

What happens if a party breaks a rule with no prescribed sanctions?

Answer 52

The court can impose a sanction (need to apply if you want it to be imposed - any party can do this), but striking out in this situation would seem unduly harsh unless the defaulting party was warned in advance. The Denton principles are directly applicable. Immediate strike out might well follow if there has been a total disregard of court orders amount to abuse of process

Should apply without delay and warn other party of your intention to do so.

Question 53

What happens if CPR/PDs impose a specific sanction for breach?

Answer 53

Sanction automatically takes effect (deemed to be proportionate; there can be no available argument that the sanction prescribed by the court is of itself unjust or disproportionate). Defaulting party may still apply for relief from sanctions.

Same if a party breaches an unless order.

Question 54

Alternative sanctions to strike out

Answer 54

Debarring from calling witnesses
Increasing rate of interest (if default comprises non-compliance with PAP, to up to 10% above base rate)
Paying all or some other party’s costs of the proceedings
Paying the costs of and occasioned by the application in which default is considered
Costs on the indemnity basis

Question 55

What is the purpose of a sanction?

Answer 55

Punish the breach in a proportionate manner and encourage future compliance.

Question 56

What if there is no express sanction in either CPR or any unless order, but defaulting party fails to take a step which they have to if they are to continue?

Answer 56

E.g. Allowing a default judgment to be entered, or failing to appeal on time.

Implied sanctions doctrine applies. Principles governing relief from sanctions under r 3.9 are applied by analogy on the application to set aside the default judgment or extend time for appealing.

Question 57

What happens where a party cannot comply on time, but issues an application to extend time for compliance before the deadline?

Answer 57

It doesn’t matter if this application is not heard before the deadline. The court decides what to do by considering the overriding objective and all the circumstances of the case.

Question 58

Three situations in which a party might apply for relief from sanctions

Answer 58

Seeking to extend time before breach
Court’s power to correct irregularities
Application to vary or revoke a previous order

Question 59

Relief from sanctions when seeking to extend time before breach

Answer 59

Court more sympathetic to this than someone who lets deadline pass and then tries to fix it. Court may alter time, even if deadline has already passed when the application is made.

Time can be extended (unless court orders otherwise_ at the agreement of parties up to max of 28 days, provided it doesn’t put any hearing date at risk.

Court generally grants more time unless prejudice to other side. Main question is whether it’s reasonable and whether it will imperil hearing date.

Question 60

Court’s power to correct irregularities

Answer 60

Error of procedure such as failure to comply with rule of PD does not invalidate steps taken in proceedings unless court orders otherwise. Court may make an order to remedy the error.

Question 61

Court’s power to vary or revoke orders already in existence.

Answer 61

This is applied restrictively, normally only where:

Material change of circumstances since original order made;

Facts on which other order was made were restated; or

Where there has been a manifest mistake by the judge in formulating the order.

Question 62

Discontinuance

Answer 62

Formal process by which the claimant brings proceedings to an end. Covered by CPR Part 38. Achieved by filing a notice of discontinuance, and there is a standard form.

Claimant may discontinue (for whatever reason):
The whole claim
Part of the claim
Against all of the defendants 
Against some of the defendants

Question 63

Discontinuance as of right, and the alternative.

Answer 63

This is the normal position and in most cases the court and other parties will be happy to see the end of the case and so no permission is needed. But sometimes there are outstanding matters that need sorting out, so C needs the court or the other party’s permission to discontinue.

Question 64

When do you need permission or court’s approval?

Answer 64

Interim injunction - Permission
Undertaking given - Permission
Interim payments - Permission or D’s consent
Two or more claimants - Permission or other claimants’ consent.
Claimant under disability - Court’s approval

Question 65

When does discontinuance take effect?

Answer 65

Discontinuance takes effect when notice is served on each party. Where claimant did not require permission to discontinue, D may apply to have the notice of discontinuance set aside: D must make this application within 28 days of the date on which the notice was served on it.

Question 66

Costs after discontinuance

Answer 66

Unless court orders otherwise, claimant is liable for defendant’s costs up to the service of the notice of discontinuance.

Question 67

If discontinuance is after a defence is filed…

Answer 67

If discontinuance is after a defence is filed, a second claim based on the same or substantially the same facts is not allowed unless the court gives permission.

Question 68

Where to find test for relief from sanctions

Answer 68

Test is set out at rule 3.9 and principles to be applied are Denton principles.

Question 69

Stages for considering: relief from sanctions

Answer 69

1. Consider whether the breach (leading to the imposition of the sanction) was serious or significant.
2. Consider why the default occurred.
3. Consider all the circumstances to enable the application to be dealt with justly, including the need:

a. For litigation to be conducted efficiently and at proportionate cost; and
b. To enforce compliance with rules, practice directions, and orders.

If a breach is not serious or significant, relief would normally given and court is unlikely to have to spend time on second and third stages. It is possible despite adverse findings at 1 and 2 that relief from sanctions may be granted when considering all the circumstances at stage 3.

Question 70

An application for relief from sanctions must be…

Answer 70

…supported by evidence

Question 71

‘Serious or significant’ nuance

Answer 71

If breach was of an unless order this itself is a pointer towards the seriousness and significance of the breach. But the court will need to look at the actual breach, i.e. what gave rise to the unless order.

Key question is whether breach imperils future hearing dates or otherwise disrupts conduct of litigation. Even so, some breaches are serious even though they do not impact on the progress of the litigation. For example, non-payment of court fees is always considered serious.

Also relevant is the effect of the breach on other court users. Past breaches not relevant at stage 1 - Left to stage 3, with exception of breaches underlying sanction from which relief is sought.

Failures of form rather than substance not serious.

Cases where deadline has been narrowly missed are less serious.

Question 72

Why the default occurred - What might count as a good/bad reason?

Answer 72

If reason arises from circumstances outside party in default’s control, more likely to be seen as good reason. E.g. Unexpected illness of accident or later developments which made compliance with original deadline unreasonable.

Overlooking a deadline or failing to meet a deadline due to pressure of work is not likely to be a good reason, nor are ongoing/known about health problems.

Question 73

‘All the circumstances of the case’ nuance

Answer 73

Litigation conduct of the parties might be relevant. History of non-compliance by defaulting party would carry weight. Court starts from position that sanction has been properly imposed and complies with overriding objective.

Court expects application for relief from sanctions to be made promptly, even if this is not of paramount importance.

Generally merits not relevant, because any investigation into the merits is apt to waste time and increase costs.

However, the situation might be different where an innocent party’s case has no real prospect of success (summary judgment test). If court can be quickly persuaded that the merits are strong enough for summary judgment, this can go into the mix. Otherwise the court should refuse to consider the merits of an application.

Court emphasised importance of penalising parties who seek to benefit from minor transgressions or unreasonably opposed applications for relief from sanctions. When a court finds that a party has attempted to take tactical advantage of a default which is neither serious nor significant, or if there is a good reason for the default, or where it is obvious that relief will be given, the court may impose “heavy costs sanctions” on the non defaulting party. Parties should be willing to grant extensions of time to comply with orders in circumstances where relief from sanctions would be granted.