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