Case management (W11)

Question 1

CPR 2.11 - Time limits may be varied by parties

Answer 1

• Unless the CPR or a PD provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.
• Time limits in CPR 3.8 (sanctions have effect unless defaulting party obtains relief), 28.4 (variation of case management timetable - fast track) and 29.5 (variation of case management timetable - multi track) provide for time limits that cannot be varied by agreement.

Question 2

CPR 3.1 - The court’s general powers of management

Answer 2

Except where these Rules provide otherwise, the court may–

(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);
(b) adjourn or bring forward a hearing;
(bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court;
(c) require a party or a party’s legal representative to attend the court
(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication
(e) direct that part of any proceedings (e.g. a counterclaim) be dealt with as separate proceedings
(f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event
(g) consolidate proceedings
(h) try two or more claims on the same occasion
(i) direct a separate trial of any issue
(j) decide an order in which issues are to be tried
(k) exclude an issue from consideration
(l) dismiss or give judgment on a claim after a decision on a preliminary issue
(ll) order any party to file and exchange a costs budget
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties to settle the case.

Question 3

CPR 3.1 - When the court makes an order

Answer 3

• It may:
  (a) make it subject to conditions, including a condition to pay a sum of money into court; and
  (b) specify the consequence of failure to comply with the order or a condition.
• Where the court gives directions, it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol.
• The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or relevant pre-action protocol.
• When exercising this power, the court must have regard to:
  (a) the amount in dispute; and
  (b) the costs which the parties have incurred or which they may incur.
• Where a party pays money into court following an order, the money shall be security for any sum payable by that party to any other party in the proceedings.
• A power of the court to make an order includes a power to vary or revoke the order.
• The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.

Question 4

CPR 3.1A - Case management: unrepresented parties

Answer 4

• 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.
• Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions and adapt them as appropriate in the circumstances of the case.
• The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.
• At any hearing where the court is taking evidence this may include:
  (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence on or which the witness ought to be cross-examined; and
  (b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.

Question 5

CPR 3.3 - Court’s power to make order of its own initiative

Answer 5

(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application of its own initiative.

(2) Where the court proposes to make an order of its own initiative-
(a) it may give any person likely to be affected by the order an opportunity to make representations
(b) where it does so it must specify the time by and the manner in which the representations must be made.

(3) Where the court proposes–
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days notice of the hearing.

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4)–
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.

(6) An application under paragraph (5)(a) must be made–
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

(7) If the court of its own initiative strikes out a statement of case or dismisses an application (including an application for permission to appeal or for permission to apply for judicial review), and it considers that the claim or application is totally without merit–
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 6

CPR 3.8 - Sanctions have effect unless defaulting party obtains relief

Answer 6

(1) Any sanction for failure to comply with a rule, PD or court order has effect unless the party in default applies for and obtains relief from the sanction.
(2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.

(3) Where a rule, PD or order:
(a) requires a party to do something with a specified time, and
(b) specifies the consequences of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).

(4) In the circumstances referred to in para (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that the extension does not put any hearing date at risk.

Question 7

CPR 3.10 - General power of the court to rectify matters where there has been an error of procedure

Answer 7

Where there has been an error of procedure such as a failure to comply with a rule or practice direction:

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.

Question 8

CPR 3.12 - Costs management

Answer 8

• Applies to all Part 7 multi-track cases, except
  (a) where the claim is commenced on or after 22 April 2014 and the amount of money claimed as stated on the claim form is £10 million or more; or
  (b) where the claim is commenced on or after 22 April 2014 and is for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and in any such case the claim form contains a statement that the claim is valued at £10 million or more; or
  (c) where in proceedings commenced on or after 6 April 2016 a claim is made by or on behalf of a person under the age of 18 (a child) (and on a child reaching majority this exception will continue to apply unless the court otherwise orders); or
  (d) where the proceedings are the subject of fixed costs or scale costs; or
  (e) the court otherwise orders.

(2) The purpose of costs management is that 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.

Question 9

CPR 3.13 - Filing and exchanging budgets and budget discussion reports

Answer 9

(1) Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets–
(a) where the stated value of the claim on the claim form is less than £50,000, with their directions questionnaires; or
(b) in any other case, not later than 21 days before the first case management conference.

(2) In the event that a party files and exchanges a budget under para (1), all other parties, not being litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference.

(3) The court –
(a) may, on its own initiative or on application, order the parties to file and exchange costs budget in a case where the parties are not otherwise required to do so;
(b) shall (other than in exceptional cases) make an order to file and exchange costs budgets if all parties consent to an application for such an order.

(4) The court may, in a substantial case, direct that budgets are to be limited in the first instance to part only of the proceedings and extended later to cover the whole proceedings.
(5) Every budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.
(6) Even though a litigant in person is not required to prepare a budget, each other party (other than a litigant in person) must provide the litigant in person with a copy of that party’s budget.

Question 10

CPR 3.14 - Failure to file a budget

Answer 10

Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.

Question 11

CPR 3.15 - Cost management orders

Answer 11

(1) In addition to exercising its other powers, the court may manage the costs to be incurred by any party in any proceedings.

(2) The court may at any time make 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 proportionate cost in accordance with the overriding objective without such an order being made. By a costs management order the court will–
(a) record the extent to which the budgeted costs are agreed between the parties;
(b) in respect of the budgeted costs which are not agreed, record the court’s approval after making appropriate revisions;
(c) record the extent (if any) to which incurred costs are agreed.

(3) If a costs management order has been made, the court will thereafter control the parties’ budgets in respect of recoverable costs.
(4) Whether or not the court makes a costs management order, it may record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings.

(5) Save in exceptional circumstances–
(a) the recoverable costs of initially completing Precedent H (the form to be used for a costs budget) shall not exceed the higher of–
(i) £1,000
(ii) 1% of the total of the incurred costs (as agreed or allowed on assessment) and the budgeted costs (agreed or approved); and
(b) all other recoverable costs of the budgeting and costs management process shall not exceed 2% of the total of the incurred costs (as agreed or allowed on assessment) and the budgeted (agreed or approved) costs.

(6) The court may set a timetable or give other directions for future reviews of budgets.

(7) After a party’s budgeted costs have been approved or agreed, the party must re-file and re-serve the budget–
(a) in the form approved or agreed with re-cast figures; and
(b) annexed to the order approving the budgeted costs or recording the parties’ agreement.

(8) A costs management order concerns the totals allowed for each phase of the budget, and while the underlying detail in the budget for each phase used by the party to calculate the costs claimed is provided for reference purposes to assist the court in fixing a budget, it is not the role of the court in the costs management hearing to fix or approve the hourly rates claimed in the budget.

Question 12

CPR 3.15A - Revision and variation of costs budgets on account of significant developments

Answer 12

(1) The revising party must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions.
(2) Any budgets revised in accordance with para (1) must be submitted promptly by the revising party to the other parties for agreement, and subsequently to the court, in accordance with paras (3) to (5).

(3) The revising party must–
(a) serve particulars of the variation proposed on every other party, using the form prescribed by Practice Direction 3E;
(b) confine the particulars to the additional costs occasioned by the significant development; and
(c) certify, in the form prescribed by Practice Direction 3E, that the additional costs are not included in any previous budgets costs or variation.

(4) The revising party must submit the particulars of variation promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed.
(5) The court may approve, vary or disallow the proposed variations, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed, or may list a further costs management hearing.
(6) Where the court makes an order for variation, it may vary the budget for costs related to that variation which have been incurred prior to the order for variation but after the costs management order.

Question 13

CPR 3.16 - Costs management conferences

Answer 13

(1) Any hearing which is convened solely for the purpose of costs management (for example to approve a revised budget) is referred to as a costs management conference.
(2) Where practicable, costs management conferences should be conducted by telephone or in writing.

Question 14

CPR 3.17 - Court to have regard to budgets and to take account of costs

Answer 14

(1) When making any case management decision, the court will have regard to any available budget of the parties and will take into account the costs involved in each procedural step.
(2) Para (1) applies whether or not the court has made a costs management order.

(3) Subject to CPR 3.15A, the court-
(a) may not approve costs incurred up to and including the date of any costs management hearings; but
(b) may record its comments on those costs and take those costs into account when considering the reasonableness and proportionality of all budgeted costs.

(4) If an interim application is made but is not included in a budget, the court may, if it considers it reasonable not to have included the application in the budget, treat the costs of such interim application as additional to the approved budgets.

Question 15

CPR 3.18 - Assessing costs on a standard basis where a costs management order has been made

Answer 15

In any case where a costs management order has been made, 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 a good reason to do so; and
(c) take into account any comments made pursuant to CPR 3.15 or 3.17 and recorded on the face of the order.

Question 16

CPR 26.3 - Directions questionnaire

Answer 16

(1) If a defendant files a defence–
(a) a court officer will–
(i) provisionally decide the track which appears to be the most suitable for the claim; and
(ii) serve on each party a notice of proposed allocation; and
(b) the notice of the proposed allocation will–
(i) specify any matter to be complied with by the date specified in the notice;
(ii) require the parties to file a completed directions questionnaire and serve copies on all other parties;
(iii) state the address of the court or the court office to which the directs questionnaire must be returned;
(iv) inform the parties how to obtain the directions questionnaire; and
(v) if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.

Question 17

CPR 26.3 - where there is an unrepresented party

Answer 17

The court will always serve on them the appropriate directions questionnaire.

Question 18

CPR 26.3 - where there are two or more defendants and at least one of them files a defence

Answer 18

The court will serve a notice under para (1)–
(a) when all the defendants have filed a defence; or
(b) when the period for the filing of the last defence has expired,
whichever is the sooner.

Question 19

CPR 26.3 - if proceedings have been automatically transferred under CPR 26.2 or rule 26.2A in which the proceedings have commenced

Answer 19

(a) will serve the notice of proposed allocation before the proceedings are transferred; and
(b) will not transfer the proceedings until all parties have complied with the notice or the time for doing so has expired.

Question 20

CPR 26.3 - if CPR 15.10 or 14.5 applies

Answer 20

The court will not serve a notice under CPR 26.3(1) until the claimant has filed a notice requiring the proceedings to continue.

Question 21

CPR 26.3 - If a notice is served under CPR 26.3(1)…

Answer 21

(a) each party must file, and serve on all other parties, the document required by the notice by no later than the date specified in it; and
(b) the date specified will be–
(i) if the notice relates to the small claims track, at least 14 days; or
(ii) if the notice relates to the fast track or multi-track, at least 28 days,
after the date when it is deemed to be served on the party in question.

The date for complying with a notice served may not be varied by agreement between the parties.

Question 22

CPR 26.3 - If a claim is a claim to which CPR 26.2A applies and a party does not comply with the notice served under CPR 26.3(1) by the date specified

Answer 22

(a) the court will serve a further notice on that party, requiring them to comply within 7 days; and
(b) if that party fails to comply with the notice served, the party’s statement of case will be struck out without further order of the court.

Question 23

CPR 26.3 - If a party does not comply with the notice served by the date specified..

Answer 23

• The court will make such an order as it considers appropriate, including–
  (a) an order for directions;
  (b) an order striking out the claim;
  (c) an order striking out the defence and entering judgment; or
  (d) listing the case for a case management conference.
• Where a case has been struck out or an order has been made, a party who is in default will not normally be entitled to an order for the costs of any application to set aside or vary that order nor of attending any case management conference and will, unless the court thinks it unjust to do so, be ordered to pay the costs that the default caused to any other party.

Question 24

CPR 26.4 - Stay to allow for settlement of the case

Answer 24

(1) A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case with ADR or other means.
(2) If all parties request a stay, the proceedings will be stayed for one month and the court will notify the parties accordingly.

(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such period as it considers appropriate.

(3) The court may extend the stay until such date or for such specified period as it considers appropriate.
(4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.
(5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached the court will give such directions as to the management of the case as it considers appropriate.

Question 25

CPR 26.4A - Referral to the mediation service

Answer 25

• Applies to claims started in the County Court which would normally be allocated to the small claims track.
• Does not apply to (a) road traffic, personal injury or housing disrepair claims, or (b) any claim in which any party to the proceedings does not agree to referral to the Mediation Service.
• Where all parties indicate on their DQ that they agree to mediation, the claim will be referred to the Mediation Service.
• If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for–
  (a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or
  (b) 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.

Question 26

CPR 26.5 - Allocation

Answer 26

(1) The court will allocate the claim to a track–
(a) when all the parties have filed their DQ; or
(b) when giving directions pursuant to CPR 26.3,
unless it has stayed the proceedings under CPR 26.4.

(2) If the court has stayed the proceedings under CPR 26.4, it will allocate the claim to a track at the end of the period of the stay.

(2A) If–
(a) a claim is referred to the Mediation Service; and
(b) the court has not been notified in writing that a settlement has been agreed,
the claim will be allocated to a track no later than 4 weeks from the date on which the last DQ is filed.

(3) Before deciding the track to which allocate proceedings or deciding whether to give directions for an allocation hearing to be fixed, the court may order a party to provide further information about his case.
(4) The court may hold an allocation hearing if it thinks it is necessary.

Question 27

CPR 26.6 - Scope of small claims track

Answer 27

• Any claim for personal injuries where (i) the value of the claim is not more than £10,000; and (ii) the value of any claim for damages for personal injuries (PSLA) is not more than £1,000
• Any claim which includes a claim by a tenant of residential premises against a landlord where (i) the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises, (ii) the cost of the repairs or other work is estimated to be not more than £1,000, and (iii) the value of any other claim for damages is not more than £1,000.
• The small claims track is the normal track for any claim of a value of not more than £10,000.
• The court will not allocate to the small claims track certain claims in respect of harassment or unlawful eviction.

Question 28

CPR 26.6 - Scope of fast track

Answer 28

• Any claim for which the small claims track is not the normal track
• Any claim which has a value (i) for proceedings issued on or after 6 April 2009 of not more than £25,000, and (ii) for proceedings issued before 6 April 2009, of not more than £15,000.
• Only the normal track for these claims if the court considers that (a) the trial is likely to last for no longer than one day and (b) oral expert evidence at trial will be limited to (i) one expert per party in relation to any expert field; and (ii) expert evidence in two expert fields.

Question 29

CPR 26.6 - Scope of multi track

Answer 29

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

Question 30

CPR 26.7 - General rule for allocation

Answer 30

• In considering where to allocate a claim, the court will have regard to CPR 26.8
• The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to other matters mentioned in CPR 26.8
• The court will not allocate a claim to the small claims track if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction.

Question 31

CPR 26.8 - Matters relevant to allocation to a track

Answer 31

When deciding the track for a claim, the matters to which the court shall have regard include:

(a) the financial value of the claim
(b) the nature of the remedy sought
(c) the likely complexity of the facts, law or evidence
(d) the number of parties or likely parties;
(e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it
(f) the amount of oral evidence which may be required
(g) the importance of the claim to persons who are not party to the proceedings
(h) the views expressed by the parties
(i) the circumstances of the parties

It is for the court to assess the financial value of a claim and in doing so will disregard:

(a) any amount not in dispute
(b) any claim for interest
(c) costs and
(d) any contributory negligence.

Where
(a) two or more claimants have started a claim against the same defendant using the claim form; and
(b) each claimant has a claim against the defendant separate from the other claimants,
the court will consider the claim of each claimant separately when it assesses the financial value.

Question 32

CPR 26.9 - Notice of allocation

Answer 32

When it has allocated a claim to a track, the court will serve notice of allocation on every party.

Question 33

CPR 26.10 - Reallocation

Answer 33

The court may subsequently re-allocate a claim to a different track.

Question 34

CPR 28.3 - Directions on fast track

Answer 34

• The matters to be dealt with by directions:
  (a) disclosure of documents
  (b) service of witness statements
  (c) expert evidence
• If the court decides not to direct standard disclosure, it may:
  (a) direct that no disclosure take place; or
  (b) specify the documents or the classes of documents which the parties must disclose.

Question 35

CPR 28.4 - Variation of case management timetable on fast track

Answer 35

• A party must apply to the court if he wishes to vary the date which the court has fixed for:
  (a) the return of a pre-trial check list
  (b) the trial
  (c) the trial period
• Any date set by the court for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates above.

Question 36

CPR 29.2 - Case management on the multi-track

Answer 36

• When it allocates a case to the multi-track, the court will:
  (a) 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 may
  (b) fix:
  (i) a case management conference; or
  (ii) a pre-trial review,
  or both, and give such other directions relating to the management of the case as it sees fit.
• The court will fix the trial date or the period in which the trial is to take place as soon as practicable.
• When the court fixes a trial date or the trial period, it will:
  (a) give notice to the parties of the date or period; and
  (b) specify the date by which the parties must file a pre-trial check list.

Question 37

CPR 29.3 - Case management conference and pre-trial review on multi track

Answer 37

The court may fix:
(a) a case management conference; or
(b) a pre-trial review,
at any time after the claim has been allocated.

If a party has a legal representative, a representative:
(a) familiar with the case, and
(b) with sufficient authority to deal with any issues that are likely to arise
must attend case management conferences and pre-trial reviews.

Question 38

CPR 29.4 - Steps taken by the parties on multi track

Answer 38

Parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least 7 days before any case management conference. Where the court approves agreed directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated.

Question 39

CPR 29.5 - Variation of case management timetable on multi track

Answer 39

• A party must apply to the court if he wishes to vary the date which the court has fixed for:
  (a) a case management conference;
  (b) a pre-trial review
  (c) the return of a pre-trial check list
  (d) the trial
  (e) the trial period
• Any date set by the court may not be varied if variation would make it necessary to vary any of the above dates.

Question 40

CPR 29.6 - Pre-trial checklist (listing questionnaire) on multi track

Answer 40

• The court will send the parties a pre-trial check list for completion and return by the date specified in directions unless it considers that the claim can proceed to trial without the need for a pre-trial check list.
• Each party must file the completed pre-trial check list by the date specified by the court.
• If no party files the completed pre-trial check list by the date specified, the court will order that unless a completed pre-trial check list is filed within 7 days from service of that order, the claim, defence, and any counterclaim will be struck out without further order of the court.
• If:
  (a) a party files a completed pre-trial checklist but another party does not,
  (b) a party has failed to give all the information requested by the pre-trial check list, or
  (c) the court considers that a hearing is necessary to enable it to decide what directions to give in order to complete preparation of the case for trial,
  the court may give such directions as it thinks appropriate.

Question 41

CPR 29.7 - Pre-trial review on multi track

Answer 41

If, on receipt of the parties’ pre-trial check lists, the court decides:
(a) to hold a pre-trial review; or
(b) to cancel a pre-trial review which has already been fixed,
it will serve notice of its decision at least 7 days before the date fixed for the hearing or, as the case may be, the cancelled hearing.

Question 42

CPR 29.8 - Setting a trial timetable and confirming the trial date or week on multi track

Answer 42

As soon as practicable after:
(a) each party has filed a completed pre-trial check list
(b) the court has held a listing hearing or
(c) the court has held a pre-trial review
the court will:
(i) set a timetable for the trial unless a timetable has already been fixed, or the court considers that it would be inappropriate to do so
(ii) confirm the date for trial or the week within which the trial is to begin; and
(iii) notify the parties of the trial timetable and the date or trial period

Question 43

CPR 29.9 - Conduct of trial on multi track

Answer 43

Unless the trial judge otherwise directs, the trial will be conducted in accordance with any order previously made.

Question 44

CPR 31.5 - Disclosure

Answer 44

• An order to give disclosure is an order to give standard disclosure unless the court directs otherwise
• The court may dispense with or limit standard disclosure
• The parties may agree in writing to dispense with or to limit standard disclosure.
• Unless the court orders otherwise, the following applies to all multi-track claims, other than those which include a claim for personal injuries:
• Not less than 14 days before the first case management conference, each party must file and serve a report verified by a statement of truth which:
  (a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue;
  (b) describes where and with whom those documents are or may be located;
  (c) in the case of electronic documents, describes how those documents are stored;
  (d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and
  (e) states which of the directions are to be sought.
• In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report.
• Not less than 7 days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.
• If (a) the parties agree proposals for the scope of disclosure; and (b) the court considers that the proposals are appropriate in all the circumstances, the court may approve them without a hearing and give directions in the terms proposed.

Question 45

CPR 31.5 - Directions for disclosure

Answer 45

At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the court justly, which of the following orders to make in relation to disclosure–

(a) an order dispensing with disclosure
(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party
(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis
(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences
(e) an order that a party give standard disclosure
(f) any other order in relation to disclosure that the court considers appropriate.

Question 46

CPR 31.5 - Directions as to how disclosure is to be given

Answer 46

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents
(b) whether lists of documents are required
(c) how and when the disclosure statement is to be given
(d) in what format documents are to be disclosed
(e) what is required in relation to documents that once existed but no longer exist
(f) whether disclosure shall take place in stages.

Question 47

3EPD.1 - Production of costs budgets

Answer 47

• In cases where the Claimant has a limited or severely impaired life expectancy, the court will ordinarily disapply case management.
• An order for the provision of costs budgets with a view to a costs management order being made may be particularly appropriate in:
  (a) unfair prejudice petitions
  (b) disqualification proceedings
  (c) applications under the Trusts of Land and Appointment of Trustees Act
  (d) claims pursuant to the Inheritance Act
  (e) any Part 8 or other claims or applications involving a substantial dispute of fact and/or likely to require oral evidence and/or extensive disclosure; and
  (f) personal injury and clinical negligence cases where the value of the claim is £10 million or more.

Question 48

3EPD.2 - Documents to be lodged for costs budgeting purposes

Answer 48

• Save in exceptional circumstances or where the court orders otherwise, the parties are not expected to lodge any documents other than Precedent H and the budget discussion report.
• Precedent T is to be used in the event of variation of a budget.

Question 49

3EPD.3 - Budget format

Answer 49

• Unless the court otherwise orders, a budget must be in the form of Precedent H
• In cases 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.
• Allowance must be made in each phase for advising the client, taking instructions and corresponding with other parties and the court in respect of matters falling within that phase.
• Contingent cost section should be used for anticipated costs which do not fall within the main categories e.g. the trial of preliminary issues, applications to amend, applications for disclosure against third parties

Question 50

3EPD.6 - Budget discussion reports

Answer 50

The budget discussion report must set out:

(a) those figures which are agreed for each phase
(b) those figures which are not agreed for each phase
(c) a brief summary of the grounds of dispute

Question 51

3EPD.7 - Costs management orders

Answer 51

When receiving budgeted costs, the court will not undertake a detailed assessment in advance, but rather will consider whether the budgeted costs fall within the range of reasonable and proportionate costs.

Question 52

26PD.9 - Fast track allocation

Answer 52

• Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track.
• The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day.
• Where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track.

Question 53

26PD.11 - Reallocation of claims and variation of directions

Answer 53

• Where a party is dissatisfied with an order made allocating the claim to a track he may appeal or apply to the court to re-allocate the claim.
• He should appeal if the order was made at a hearing at which he was present or represented, or of which he was given due notice.
• In any other case he should apply to the court to re-allocate.
• Where there has been a change in the circumstances since an order was made allocating the claim to a track the court may re-allocate the claim. It may do so on application or on its own initiative.

Question 54

29PD.3 - General case management on multi track

Answer 54

• Case management of a claim which is proceeding at the Royal Courts of Justice will be undertaken there. Case management of any other claim which has been allocated to the multi-track will normally be undertaken at a Civil Trial Centre.
• The hallmarks of the multi-track are— (1) the ability of the court to deal with cases of widely differing values and complexity, and (2) flexibility given to the court.
• On allocating a claim to the multi-track the court may give directions without a hearing, including fixing a trial date or a period in which the trial will take place.
• Alternatively, whether or not it fixes a trial date or period, it may either (a) give directions for certain steps to be taken and fix a date for a case management conference or a pre-trial review, or (b) fix a date for a case management conference.
• The court may give or vary directions at any hearing which may take place on the application of a party or of its own initiative.
• When any hearing has been fixed it is the duty of the parties to consider what directions the court should be asked to give and to make any application that may be appropriate.
• The court will hold a hearing to give directions whenever it appears necessary or desirable to do so, and where this happens because of the default of a party or his legal representative it will usually impose a sanction.
• When the court fixes a hearing to give directions it will give the parties at least 3 days’ notice of the hearing unless it is a pre-trial review (which needs 7 days)
• Where a party needs to apply for a direction of a kind not included in the case management timetable which has been set, he must do so as soon as possible.
• Courts will make arrangements to ensure that applications and other hearings are listed promptly to avoid delay.
• Case management will generally be dealt with by:
  (a) a Master in cases proceeding in the Royal Courts of Justice
  (b) a District Judge in cases proceeding in a District Registry of the High Court
  (c) a District Judge or a Circuit Judge in cases proceeding in the County Court.

Question 55

29PD.3A - Multi track: consideration of periodical payments

Answer 55

In a personal injury claim the court should consider and indicate to the parties as soon as practicable whether periodical payments or a lump sum is likely to be the more appropriate form for all or part of an award of damages for future pecuniary loss.

Question 56

29PD.4 - Directions on allocation to multi track

Answer 56

• The court will seek to tailor its directions to the needs of the case and the steps which the parties have already taken to prepare the case.
• At this stage the court’s first concern will be to ensure that the issues between the parties are identified and that the necessary evidence is prepared and disclosed.
• The court may have regard to any document filed by a party with his directions questionnaire containing further information provided that the document states either that its contents has been agreed with every other party or that it has been served on every other party, and when it was served.
• On the allocation of a claim to the multi-track the court will consider whether it is desirable or necessary to hold a case management conference straight away, or whether it is appropriate instead to give directions on its own initiative.
• Parties must endeavour to agree appropriate directions for the management of the proceedings, and requires the agreed directions or proposals to be submitted to the court within a specified time period.
• To obtain the court’s approval the agreed directions must:
  (a) set out a timetable
  (b) include a date or a period (the trial period) when it is proposed that the trial will take place
  (c) include provision about disclosure
  (d) include provision about both factual and expert evidence.
• The court will scrutinise the timetable carefully and in particular will be concerned to see that any proposed date or period for the trial and (if provided for) for a case management conference is no later than is reasonably necessary.
• Where the court is to give directions on its own initiative without holding a case management conference and it is not aware of any steps taken by the parties other than the exchange of statements of case, its general approach will be:
  (1) to give directions for the filing and service of any further information
  (2) direct standard disclosure
  (3) direct the disclosure of witness statements by way of simultaneous exchange
  (3) give directions for a single joint expert on any appropriate issue
  (4) direct disclosure of experts’ reports by way of simultaneous exchange on those issues where a single joint expert is not directed
  (5) if experts’ reports are not agreed, to direct a discussion between experts
  (6) to list a case management conference
  (7) to specify a trial period
  (8) in such cases as the court thinks appropriate, the court may give directions requiring the parties to consider ADR.
• If it appears that expert evidence will be required both on issues of liability and on the amount of damages, the court may direct that the exchange of those reports that relate to liability will be exchanged simultaneously but that those relating to the amount of damages will be exchanged sequentially.
• If it appears to the court that it cannot properly give directions on its own initiative and no agreed directions have been filed which it can approve, the court will direct a case management conference to be listed asap.

Question 57

29PD.5 - Case management conferences

Answer 57

• The court will at any case management conference:
  (1) review the steps which the parties have taken in the preparation of the case, and in particular their compliance with any directions
  (2) decide and give directions about the steps which are to be taken to secure the progress of the claim in accordance with the overriding objective
  (3) ensure as far as it can that all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded.
• Where a party has a legal representative, a representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend case management conferences and pre-trial reviews. Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, the court will expect to make a wasted costs order.
• The topics the court will consider at a case management conference are likely to include:
  (1) whether the claimant has made clear the claim he is bringing, in particular the amount he is claiming, so that the other party can understand the case he has to meet
  (2) whether any amendments are required to the claim
  (3) what disclosure of documents, if any, is necessary
  (4) what expert evidence is reasonably required
  (5) what factual evidence should be disclosed
  (6) what arrangements should be made about the giving of clarification or further information and the putting of questions to experts
  (7) whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.
• In all cases the court will set a timetable for the steps it decides are necessary to be taken.
• The court will not at this stage give permission to use expert evidence unless it can identify each expert by name or field in its order and say whether his evidence is to be given orally or by the use of his report. A party who obtains expert evidence before obtaining a direction about it does so at his own risk as to costs.
• A case summary:
  (a) should be designed to assist the court to understand and deal with the questions before it
  (b) should set out a brief chronology of the claim, the issues of fact which are agreed or in dispute and the evidence needed to decide them
  (c) should not normally exceed 500 words in length, and
  (d) should be prepared by the claimant and agreed with the other parties if possible.
• Where a party wishes to obtain an order not routinely made at a case management conference and believes that his application will be opposed, he should issue and serve the application in time for it to be heard at the case management conference.
• At a case management conference the court may also consider whether the case ought to be tried by a High Court Judge or by a judge who specialises in that type of claim and how that question will be decided.

Question 58

29PD.6 - Variation of directions

Answer 58

• It is essential that any party who wishes to have a direction varied takes steps to do so as soon as possible.
• The court will assume for the purposes of any later application that a party who did not appeal, and who made no application to vary within 14 days of service of the order containing the directions, was content that they were correct in the circumstances then existing.
• Where a party is dissatisfied with a direction given or other order made by the court he may appeal or apply to the court for it to reconsider its decision.
• a party should appeal if the direction was given or the order was made at a hearing at which he was present, or of which he had due notice.
• In any other case he should apply to the court to reconsider its decision.
• If an application is made for the court to reconsider its decision:
  (a) it will usually be heard by the judge who gave the directions or another judge of the same level
  (b) the court will give all parties at least 3 days’ notice of the hearing
  (c) the court may confirm its directions or make a different order.
• Where there has been a change in the circumstances since the order was made the court may set aside or vary a direction it has given. It may do so on application or on its own initiative.
• Where the parties agree about changes they wish made to the directions given: for extensions of time and agreements of disclosure, the parties need not file the written agreement.
  (a) In any other case the parties must apply for an order by consent.
  (b) The parties must file a draft of the order sought and an agreed statement of the reasons why the variation is sought.
  (c) The court may make an order in the agreed terms or in other terms without a hearing, but it may direct that a hearing is to be listed.

Question 59

29PD.7 - Failure to comply with case management directions

Answer 59

• Where a party fails to comply with a direction given by the court any other party may apply for an order that he must do so or for a sanction to be imposed or both of these.
• The party entitled to apply for such an order must do so without delay but should first warn the other party of his intention to do so.
• The court may take any such delay into account when it decides whether to make an order imposing a sanction or to grant relief from a sanction.
• The court will not allow a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional.
• Where it appears that one or more issues are or can be made ready for trial at the time fixed while others cannot, the court may direct that the trial will proceed on the issues which are then ready, and direct that no costs will be allowed for any later trial of the remaining issues or that those costs will be paid by the party in default.
• Where the court has no option but to postpone the trial it will do so for the shortest possible time.
• the court will regard the postponement of a trial as an order of last resort.
• The court will not postpone any other hearing without a very good reason, and for that purpose the failure of a party to comply on time with directions previously given will not be treated as a good reason.

Question 60

29PD.8 - Pre-trial checklist (listings questionnaire)

Answer 60

• The pre-trial check list (listing questionnaire) will be in Form N170.
• Unless it dispenses with pre-trial check lists and orders an early trial on a fixed date, the court will specify the date for filing completed pre-trial check lists when it fixes the trial date or trial period.
• The date for filing the completed pre-trial check list will be not later than 8 weeks before the trial date or the start of the trial period.
• The court will serve the pre-trial check lists on the parties at least 14 days before that date.
• Although the rules do not require the parties to exchange copies of the check lists before they are filed they are encouraged to do so to avoid the court being given conflicting or incomplete information.
• The file will be placed before a judge for his directions when all the check lists have been filed or when the time for filing them has expired and where a party has filed a check list but another party has not done so.

Question 61

29PD.9 - Directions the court must give on listing

Answer 61

The court must fix the trial date or week, give a time estimate and fix the place of trial.

Question 62

29PD.9 - Directions the court may give on listing

Answer 62

• The parties should seek to agree directions and may file an agreed order. The court may make an order in those terms or it may make a different order.
• Agreed directions should include provision about:
  (a) evidence especially expert evidence,
  (b) a trial timetable and time estimate,
  (c) the preparation of a trial bundle, and
  (d) any other matter needed to prepare the case for trial.
• The court will include such of these provisions as are appropriate in any order that it may make, whether or not the parties have filed agreed directions.
• Unless a direction doing so has been given before, a direction giving permission to use expert evidence will say whether it gives permission to use oral evidence or reports or both and will name the experts concerned.

Question 63

29PD.10 - The Trial

Answer 63

• The trial will normally take place at a Civil Trial Centre but it may be at another court if it is appropriate having regard to the needs of the parties and the availability of court resources.
• The judge will generally have read the papers in the trial bundle and may dispense with an opening address.
• The judge may confirm or vary any timetable given previously or set their own.
• In an appropriate case the judge may summarily assess costs.
• Once the trial of a multi-track claim has begun, the judge will normally sit on consecutive court days until it has been concluded.