Chapter 9: Case and costs management Flashcards
1 Introduction
Once the parties have filed and served their statements of case (claim form, particulars of claim, defence and possibly other statements of case) it should be possible to identify the issues in dispute. These are the issues that need to be resolved at trial. They will be resolved by a judge (and very occasionally a jury) considering the evidence.
1 Introduction
What happens between completion of the statements of case and trial? The main task is for the parties to prepare and exchange evidence – relevant documents, statements indicating what the
witness will say at trial (witness statements), and possibly reports from experts who can give useful opinions on relevant matters (such as when someone might expect to recover from an injury, or why a particular building is suffering from a defect)
1 Introduction
This evidence is exchanged in stages in the months or years before trial. Exchanging evidence before trial allows the parties to prepare better for trial and for the trial to be more effective and efficient: if all the evidence was seen for the first time at trial, trial would be time consuming and
chaotic. Also, exchanging evidence before trial gives the opportunity for the parties to explore settlement in the knowledge of the evidence which has been exchanged.
Court gives directions
The court directs when these various stages should take place – the court gives ‘directions’. The directions aim to achieve a just result at a proportionate cost, in accordance with the overriding
objective (CPR 1.1(1)). The aims of justice and proportionate cost mean that different cases will require different directions
1 Introduction
The court also needs to actively manage a case – generally, and specifically to ensure it progresses in accordance with the court’s directions.
The giving of directions and the management of a case is called ‘case management’. Managing the case goes hand in hand with managing the costs of the litigation.
Costs are proportionate if they bear a reasonable relationship to:
- The sums in issue in proceedings;
- The value of any non-monetary relief in issue in proceedings;
- The complexity of the litigation;
- Any additional work generated by the conduct of the paying party; and
- Any wider factors in the proceedings, such as reputation or public importance.
Costs are proportionate if they bear a reasonable relationship to:
For example, it is generally going to be disproportionate to spend £50,000 in legal costs seeking to recover a £10,000 debt, if the claim is straightforward, the parties have behaved reasonably
and there are no issues of reputation / public importance involved. The court wants to discourage this. How can the aim of dealing with cases at proportionate cost be achieved? The court encourages proportionate costs by giving directions for the litigation which are proportionate.
Costs management regime is only really a concern on
the multi-track
Whilst costs are important in all cases, the ‘costs management’ regime is only really a concern on the multi-track. The costs management regime involves the parties providing a budget of future costs to the court at an early stage so that the court can tailor the steps to be taken (directions) in the light of the parties’ indications as to the costs of those steps.
By allowing the parties to agree budgets or the court amending and approving budgets, the parties have an early indication of what will be considered to be proportionate costs and therefore less uncertainty as to what will happen if there is a costs order and the amount of costs needs to be assessed.
2 Case management powers and striking out
2.1 The court’s general case management powers
The court has a number of powers to manage cases and costs (CPR 3.1(2)).
Examples are:
* Extend/shorten the time for compliance with any rule, practice direction or court order.
* Adjourn hearings or bring them forward.
* Require a party or their legal representative to attend court.
* Stay the whole or part of the proceedings or judgment either generally or until a specified
event.
* Order any party to file and serve a costs budget.
2.1 The court’s general case management powers
There is also a general provision allowing the court to take any other step or make any order for the purpose of managing the case and furthering the overriding objective (CPR 3.1(2)(m)). The court’s power to make an order of its own initiative (CPR 3.3) means that, without either party taking a step, the court could provide new directions or terminate a case.
2.1 The court’s general case management powers
If the court makes an order of its own initiative without a hearing and without giving the parties the opportunity to make representations, the court will include a statement in the order that the parties have a right to apply to set aside, stay or vary the order within a given period. If the court does not specify a period, any application should be made within seven days of the date on which the order was served on the party making the application.
2.2 The court’s power to strike out
Strike out: The deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party. It can include deletion of the entire statement of case so that the case is effectively over. Strike out is designed to target cases that are inadequately drafted or are otherwise an abuse of the court process
2.2 The court’s power to strike out
The court may exercise its power to strike out the whole or part of a statement of case (CPR 3.4) of
its own initiative or on the application of a party. Applications should be made as soon as possible and preferably before allocation. If the court is going to exercise its power to strike out of
its own initiative, this is likely to happen around the allocation / case management stage, when the court first engages with the substance of the dispute.
2.2 The court’s power to strike out
Strike out is used quite sparingly by the courts as there are often more suitable ways to deal with defective cases such as requiring the party at fault to amend its statement of case or, if the ground for striking out is failure to comply with previous orders made by the court, imposing a sanction such as an adverse costs order.
2.2.1 What is the difference between strike out and summary judgment?
There is considerable overlap between the two provisions and applications are often made for summary judgment and strike out in the alternative. Strike out focuses on the statement of case
and so covers cases which do not amount to a legally recognisable claim or defence. The case or issues are weak as pleaded. Summary judgment (CPR 24) covers cases which are weak on the
facts.
2.2.2 What is the difference between strike out and default judgment?
Default judgment (CPR 12) is the consequence of the defendant failing to respond to a claim. Default judgment is therefore procedural: if a defendant fails to file an acknowledgment of service
and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment. The court does not consider the merits of the case when ordering judgment in default. Strike out is not purely procedural.
2.2.3 Grounds for strike out
(a) No reasonable ground for bringing/defending the claim
A statement of case may be struck out if it discloses no claim or defence as a matter of law. It is therefore important that the party’s statement of case is properly set out.
Example: No reasonable ground for bringing the claim
A claim which stated ‘money owed £5,000’ without explaining how and why the debt arose: duty, breach and causation. The statement does not include the required facts.
Example: No reasonable ground for defending the claim
A defence denies a claim without giving any reasons for the denial. This is incoherent and in breach of the rules.
(b) Abuse of process / likely to obstruct just disposal of proceedings
Abuse of process is a misuse of procedure. It is not defined in the CPR, but Lord Bingham said it is
“using that process for a purpose or in a way significantly different from it ordinary and proper use” (Attorney General v Barker [2000] 1 FLR 759)
Example: Abuse of process
An example of abuse of process is a vexatious litigant; it is obviously a misuse of court procedure to commence a claim with no intention of taking the case further as it is not using the court procedure for the purpose for which it is designed.
Example: Abuse of process
Obstructing just disposal includes claims that are vexatious or obviously ill-founded (3A PD 1.5) and the court will look at all the circumstances of the case. A statement of case which discloses no reasonable ground may also be an abuse of the court’s
process; there is no exact dividing line between ground (a) and ground (b).
c) Failure to comply with a rule, practice direction or court order Ground (c) covers cases where the abuse is not in the statement of case itself, but is in the way the claim or defence has been conducted.
Example: Failure to comply
Examples of the failure to comply with a rule, practice direction or court order would be late service and exchange of documents, not attending court when ordered to do so or being unprepared for court hearings.
Example: Failure to comply
If a fair hearing will still be possible it is unlikely that the court will strike out a statement of case on this ground as it would not be carrying out justice to bar a litigant from proceedings due to a
technical breach of the rules. Instead, the court would be more likely to make an order imposing a lesser sanction for non-compliance. Sanctions are addressed in another section
2.2.4 Judgment after strike out
Where the court makes an order which includes a term that the statement of case of a party will be struck out if the party does not comply with the order (for example, “If the claimant does not
provide a copy of the contract referred to in the particulars of claim, the particulars claim will be struck out”), and the party does not comply and so the statement of case is struck out, the other party can generally obtain judgment with costs by filing a simple request at court (on rare occasions, an application to court will be required).
2.3 Summary
The court has a non-exhaustive list of case management powers to enable it to actively manage cases either using its own initiative or on application by a party.
* The court can make orders of its own initiative – without any prompt or application by a party
* The court can strike out all or part of a statement of case when a statement of case shows no
reasonable grounds for brining or defending the claim or is an abuse of the court’s process or there has been a failure to comply with a rule, practice direction or court order.
* If the whole of a statement of case is struck out, the court might also give judgment for a party.
* The court can make an order for strike out of its own initiative or upon an interim application by one of the parties.
3 Allocation to track
Allocation: Deciding which ‘track’ a claim should be allocated to.
3 Allocation to track
There are three separate tracks a case can be allocated to: the small claims track, the fast track and the multi-track.
The tracks matter because the court manages the claims on the different tracks in different way. The tracks are described in more detail in later sections, but brief summaries are in the table immediately below.
3 Allocation to track
The decision about which track to allocate a claim to is based primarily, but not only, on the value of the claim. When assessing the value of the claim, the court will disregard interest, costs, any amount not in dispute and any contributory negligence.
3.1 The scope of each track
Small claims track (CPR 27)
This is the normal track for cases with a value of not more than £10,000 and also claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than £1,000. There are special rules for personal
injury claims – see the next page.
Fast track (CPR 28)
The fast track is the normal track for claims (other than those for which the small claims track is the normal track) up to £25,000, provided that:
(a) the trial is likely to last no longer than one day (five hours); and
(b) there will only be oral expert evidence from one expert per party in each of no more than two expert fields (CPR 26.6(4) and (5)).
Multi-track (CPR 29)
The multi-track is the normal track for all other types of case (CPR 26.6(6))
3.1.1 The scope of the small claims track – personal injury claims
In relation to the small claims track, there are special rules which apply to personal injury claims. Broadly, the small claims track is the normal track for a personal injury claim if the value of th claim is not more than £10,000 (as with other claims); and in addition
3.1.1 The scope of the small claims track – personal injury claims
(a) in relation to road traffic claims where the accident occurred before 31 May 2021, or the claimant is a child or protected party, or the claimant was riding a motorcycle, the damages
for the personal injuries (pain, suffering and loss of amenity) are valued at not more than £1,000;
3.1.1 The scope of the small claims track – personal injury claims
(b) in relation to other road traffic claims, the damages for the personal injuries are valued at not more than £5,000;
(c) in any other personal injury claim (not road traffic claims), the damages for the personal injuries are valued at not more than £1,500.
3.2.1 Notice of proposed allocation
Following the receipt of a defence, a court officer will provisionally decide the track which appears to be most suitable for the claim and then serve on each party a notice of proposed
allocation (CPR 26.3(1)).
3.2.1 Notice of proposed allocation
The notice of proposed allocation will indicate which track is proposed for the claim.
It will also require the parties to:
(a) File and serve a directions questionnaire
(b) On the fast track or multi-track, file proposed directions; and
(c) For claims under the costs management regime, file and serve a costs budget and an agreed budget discussion report. It will also state the deadlines for these steps.
3.2.2 The directions questionnaire
The information required to enable the court to determine which track the case will be allocated to is provided by the parties completing the directions questionnaire (DQ) (Form N180 for small claims track cases and Form N181 for fast track and multi-track cases).
The DQ contains a number of questions to help the court decide which track is most appropriate
for the case.
Pre-action protocol
The parties must confirm in the DQ whether they have complied with the pre-action protocols. If there is no specific pre-action protocol, then parties are expected to comply with the practice direction on Pre-Action Conduct. If a party fails to comply with the pre-action protocols it must
explain why and there may be sanctions as a result.
Settlement
There is a section in the DQ for the parties to request that the court stay the proceedings so the
parties can try to settle. A stay is a period of time during which the proceedings are paused, and
the parties are prevented from taking any steps in the proceedings, apart from steps allowed by
the CPR or the terms of the stay. Legal representatives have to confirm in the DQ that they have
explained to their client the need to consider settling the claim and that there could be costs
consequences against them if the client unreasonably refuses to try to settle.
Settlement
If all parties request a stay, the claim will be stayed for a month (CPR 26.4(2)).
In any other circumstances, including if one party (but not all parties) requests a stay, the court can stay the claim if it considers it appropriate (CPR 26.4).
Cases are usually stayed for one month at a time. If the case is not settled at the end of that period and the parties have not applied for an extension of the stay to continue negotiations, the
case will be referred to a judge for allocation and directions.
Disclosure
The DQ also asks the parties to provide a lot of case management information as to the future preparation of the case for trial including the extent of disclosure. Briefly, disclosure is the stage in the proceedings where the parties will exchange documents. In
most cases, this is done by each party serving a list of documents which exist and then the recipient being permitted to inspect or to receive copies of the listed documents (with some
exceptions).
Disclosure
You will have discussed gathering documentary evidence with your client at the very first meeting with them and it is now, when you complete the DQ, that you will need to think about
what type of disclosure order is needed for any particular case. Disclosure is not covered in detail in this Chapter
Witnesses
Each party will also be required to name the witnesses that it would like to call to trial and detail
what it hopes they will help that party to prove. It is important to note that there is ‘no property in
a witness’ ie there is no rule preventing a party from approaching a witness that it has seen listed in the other party’s DQ and seeking their views / assistance (although of course there are rules which prohibit any party from putting pressure on a witness to give particular evidence). It is advisable therefore to speak to witnesses before you list them in the DQ
Expert evidence
In a civil claim, judges often have to consider not just legal issues but also scientific, technical, medical or other issues of which they may have no direct experience or knowledge. The judge will be assisted by experts in the relevant area (so in relation to a medical issue, an expert practitioner
such as a hospital consultant). If your client wishes to rely on expert evidence then it will need the court’s permission to do so.
Trial
Parties are also required to estimate the time needed for the trial and it would be useful to consult
counsel at this stage for an accurate estimate. This trial estimate will be included in the directions
given by the judge and parties are required to notify the court if there is any change to the estimate given.
Costs
In multi-track cases which fall within automatic costs management, the parties will need to file a costs budget with the DQ. This is part of the costs management regime, and is not addressed in detail in this here, but later in this chapter.
Directions
The DQ also requires parties to attempt to agree directions and to attach them, if the case has been provisionally allocated to the fast or multi-track. Proposed directions must be filed with the DQ, whether the parties have managed to reach agreement or not (CPR 26.3(1)(b)(v)).
Other matters
In addition to the above, the DQ also asks for information in relation to:
(a) Which court the claim should be heard in;
(b) Which track the parties think the case should be allocated to (ie whether the parties dispute the track it is proposed the claim be allocated to);
(c) Whether the parties have already made any interim applications and whether they intend to make any in the future; and
(d) Any other facts or documents the parties wish the judge to consider on allocation