Costs + case management

Question 1

What happens when the court does not make an order as to costs?

Answer 1

Each party pays their own costs

Question 2

Can the court order a non-party to pay the costs of a party to the proceedings?

Answer 2

YESCosts orders against non-parties are ‘exceptional’ but the ultimate question the court will ask is whether it is just to make the order;
Where the non-party both funds but also substantially controls or at any rate is to benefit from proceedings, justice will ordinarily require that if the proceedings fail the non-party will pay the successful party’s costs.

Question 3

What is the extent of the court’s discretion when determining costs?

Answer 3

Whether costs are payable by one party to another;
The amount of those costs; and
When they are to be paid

Question 4

Who has to burden of proof to show that the court should depart from its general rule on costs?

Answer 4

the burden is on the unsuccessful party to show why there should be a departure from the general rule for a particular reason

Question 5

Standard basis vs indemnity basis of costs assessment

Answer 5

Standard basis
The court will allow costs which:
have been proportionately and reasonably incurred; and
are proportionate and reasonable in amount.
Any doubt is resolved in favour of the paying party.

Indemnity basis (awards greater costs than standard basis)
The court will allow costs which:
have been reasonably incurred; and
are reasonable in amount.
Any doubt is resolved in favour of the receiving party.

Question 6

Time for complying with an order for costs

Answer 6

Unless the court orders otherwise, a party must comply with an order for the payment of costs within 14 days of:
the date of the judgment or order if it states the amount of costs;
if the amount of those costs (or part of them) is decided later, the date of the certificate which states the amount

Question 7

Summary vs detailed assessment of costs

Answer 7

Summary assessment - this involves the court determining the amount payable by way of costs immediately at the end of a hearing. Used in interim applications of matters lasting not more than a day and fast track cases.
Detailed assessment - The court, on deciding that one party should pay the other party’s costs, orders that they be subject to detailed assessment (if not agreed). At that point, the court makes no attempt to set a figure on them. Parties serve bills of costs on each other, if no agreement than a hearing on costs with a costs officer.

Question 8

Interim costs orders
costs in any event
costs in the case
no order for costs

Answer 8

Costs in any event - the party who wins the interim application gets its costs regardless of who wins at trial
Coss in the case - the party who wins at trial gets its costs of the interim application
No order for costs - each party bears its own costs

Question 9

The court’s power to make orders of its own initiative + how to set them aside?

Answer 9

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

Question 10

Strike out - what is it?

Answer 10

Key word or definition: Strike out is 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.

Question 11

Who can apply for a strike out?

Answer 11

C, D, court on its own initiative

Question 12

Grounds for a strike out

Answer 12

(a) the statement of case discloses no reasonable ground for bringing or defending the claim
(b) the statement of case is an abuse of the court’s process or otherwise likely to obstruct the just disposal of proceedings
(c) there has been a failure to comply with a rule, practice direction or court order

Question 13

An unless order - what is it?

Answer 13

An unless order is an order which provides for an automatic sanction in the event of non-compliance with the order. The unless order must specify the date and time within which the act must be done

Question 14

How to extend time to comply with an order?

Answer 14

Parties can agree an extension of up to 28 days with prior written agreement, unless it does not affect any deadlines

Question 15

Consequences of non-compliance with orders imposing sanctions

Answer 15

Sanction takes effect unless the party applies for and obtains relief from that sanction

Question 16

Main considerations of the court when considering relief from sanctions

Answer 16

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

Question 17

Relief from sanctions - test

Answer 17

(1) Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then relief should be granted.
whether a breach has been serious or significant is whether it has imperilled future hearing dates or otherwise disrupted the conduct of litigation.
(2) If the breach is serious or significant, consider why the default occurred.
(3) Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly but with particular weight to be given to the requirements under CPR 3.9 that (1)(a) litigation must be conducted efficiently and at proportionate cost and (1)(b) the court must enforce compliance with rules, practice directions and orders.

Question 18

Do you apply this test for relief from sanctions when considering setting aside default judgment?

Answer 18

YES, as its treated as a relief from sanctions

Question 19

Allocation to track

Answer 19

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 26.9(6)).
Intermediate track (CPR 28): The intermediate track is the normal track for claims (where the case is suitable for neither the small claims nor fast track) up to £100,000, provided that:
a. the trial is likely to last no longer than 3 days if managed proportionately; and
b. oral expert evidence is likely to be limited to two experts per party (CPR 26.9(7))
Brought by a single claimant against either one or two defendants, or brought by two claimants against a single defendant (maximum of 3 parties)
Multi-track (CPR 29): The multi-track is the normal track for all other types of case (CPR 26.9(10))

Question 20

Allocation to track - personal injury claims

Answer 20

Broadly, the small claims track is the normal track for a personal injury claim if the value of the claim is not more than £10,000 (as with other claims); AND IN ADDITION
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;
in relation to other road traffic claims, the damages for the personal injuries are valued at not more than £5,000;
in any other personal injury claim (not road traffic claims), the damages for the personal injuries are valued at not more than £1,500.

Question 21

Directions questionnaire

Answer 21

Parties specify extent of disclosure and required witnesses

Question 22

Proposed directions

Answer 22

The DQ also requires parties to attempt to agree directions and to attach them (proposed directions must be filed with DQ whether the parties have managed to reach agreement or not if the case is allocated to fast, intermediate or multi-track)
Proposed directions filed 7 days before CMC if there is one

Question 23

Disclosure report and electronic documents questionnaire

Answer 23

File not less than 14 days before first CMC
Must file it in multi-track
Briefly describes what documents exist, or may exist, that are, or may be, relevant to the matters in issue in the case;
Describes where, and with whom, those documents are, or may be, located;
Describes how any electronic documents are stored;

Question 24

What happens if parties agreed directions before first CMC?

Answer 24

If the parties have agreed all the directions required for the future management of the case and the court is satisfied of the appropriateness of the directions it may ‘vacate’ the CMC – cancel it

Question 25

Cost management regime - scope

Answer 25

The costs management regime will not apply in all cases. By default, the costs regime applies to all cases except the following cases (CPR 3.12):
Small claims track, fast track or intermediate track claims.
Claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more.
Claims commenced on or after 22 April 2014 which are for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10 million or more.
Claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18.
Claims that are the subject of fixed costs or scale costs.

Question 26

Cost management regime - what ti file and when?

Answer 26

Parties prepare budgets: estimates of future costs. Filed and exchanged, usually 21 days before the first CMC (unless the value of the claim is less than 50,000 then with DQ). Subsequently discussed by the parties.
Budget discussion reports record extent to which the parties have agreed budgets and points of dispute with explanation. Filed and exchanged, usually 7 days before the first CMC.
The budget relates to what a party might hope to recover from the other side (party/party costs) as opposed to the amount a solicitor can charge a client for acting on its behalf (solicitor/party costs)
Budget - “An estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.”

Question 27

CMO - what is it?

Answer 27

The court will make a CMO unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without a CMO
CMO - cost management order of proportionate and reasonable costs
The budget effectively becomes a ‘cap’ on what can be recovered.
When it comes to assessment, the court will not depart from approved / agreed budgets unless satisfied that there is good reason to do so.

Question 28

How to revise a costs budget?

Answer 28

If significant developments in the litigation warrant a revision to a party’s budget (upwards or downwards), then:
An amended budget should be submitted to the other parties for agreement if possible (using a form prescribed specifically for variations – ‘Precedent T’, annexed to 3D PD); and
The amended budget then needs to be submitted to court for consideration.

Question 29

What happens if you fail to file a budget?

Answer 29

Any party that fails to file a costs budget, when required to do so, will be automatically treated as having filed a costs budget comprising of only the applicable court fees unless the court otherwise orders