Disputes case management and disclosure Flashcards
Requirements of court in relation to case management?
- overriding objective is the main consideration - 1.1 civil procedure rules
- 1.1 - objection courts to deal with cases justly and at proportionate cost
- 1.2 - bear in mind duties
- 1.4 - must further the overriding objective by actively managing cases.
- courts must have an active role in case managing effectively through courts, quickly and proportionately at little cost. Parties are expected to co-operate.
How is overriding objective put in place, procedure
- after claim form filed and defence served court will PROVISIONALLY allocate to track and serve notice on parties. Sets dates by which parties should serve file directions questionnaire.
- parties file directions questionnaire and draft directions. MUST co-operate and file at court
- Court confirm allocation (can hold allocation hearing)
In IT and FT - assign complexity band
IT & FT directions issued - based on what agreed
Directions:
FT - standard directions (SD)- after allocation
IT - SD or Case management conference (CMC) - parties expected to agree after allocation or at CMC
MT - SD or CMC - usually CMC - court issues after allocation of CMC.
Content of directions questionnaire.
1) Settlement
2) Court and protocols
3) Case management
4) Evidence
5) Admin
6) Directions
1) Settlement
- state explained settlement and attempted to settle. Can ask for month stay to attempt to settle which can be extended
2) Court and protocols
-state complied with pre action steps. State where think should be allocated
3) Case management
- Interim apps? objections to provisional allocation
- state if made agreement re disc electronic docs, hearing required? or to be D/W at CMC
- directions on disclosure non electronic docs
4) Evidence - wits, names and experts, can SJE be appointed, cost of expert
5) Admin
- estimate length of trial, estimate of costs if MT will be in costs budget, any interim applications
6) Directions
- draft order for directions must be included
What can court pause proceedings at this stage for?
- under 1.4e (1.1 2F) court can pause proceedings to consider alternative disputes resolution.
- parties can apply for this in questionnaire.
Dates for service in various tracks
1) FT & IT
2) IT
3) MT
1) - FT & IT
- disclosure - 4 weeks
- exchange wit states - 10 weeks
- exchange expert report - 14 weeks
- pre trial checklist - 20 weeks
- file completed pre trial questionnaire - 22 weeks
- hearing -30 weeks
FT= £10,001 - £25,000
- no more than 1 day
- 1 expert per party in 2 fields
2) IT
- may hold CMC and pre trial review
- at CMC issue directions before allocation
- before CMC parties MUST try to agree directions and submit at least 7 clear days before CMC
- disclosure report - no more than 14 days before CMC.
SPECIFIC RULES
- 1 expert witness unless reasonable, relevant and proportionate to have another
- trial not exceeding 3 days
- total witnesses and summaries not exceeding 30 pages
- expert not to exceed 20 pages
IT - £25,001 - £100,00
3 days or less
2 experts per party - max 3
3) MT - 2 options
a) CT gives directions with timetable - FT directions or directions is based on them - standard directions
b) Fix CMC to determine directions tailored for case.
MT -Factors applies meaning FT/IT not suitable or case complex
When considering which track must fulfil all or move to next track.
MULTI TRACK - details
- CMC = mini hearing - both parties, docs served, assess docs and make decisions
Before CMC
1) agree draft directions, witness experts etc 7 days before CMC
2) case summary submission - work together on this
3) submit disclosure report - work together, documents each party intends to disclose - 14 days before CMC
4) agree approach re e -disclosure
5) exchange and file costs budget - 21 days before CMC and budget discussion - 7 days before CMC
AT CMC
- hears from both parties
- make decisions directions up to trial. In MT (sometimes IT) can hold pre trial hearing.
COSTS BUDGETS
- parties expected to agree and file costs budget and file at CMC
- if agreed will issue case management order (CMO) - approving budget
- if agreed/approved then those costs are recoverable
- court keeps close eye, CAN depart BUT ONLY with very good reason
- CT can issue costs management hearing in complex cases
- If no CMC that provides more flexible. Assess line by line if reasonable and in indemnities if reasonable.
- If fail to file costs budget can’t recover full legal costs if win. Can only recover court fees
IF CMO made
- costs final
- can review but very unlikely
- CPR 3 - full discretion judge to case manage.
DISCLOSURE
= production list of documents relevant to case from one side to another
Disclosure list
1) Documents which can inspect - look at
2) Documents can’t inspect - privilege
3) Documents no longer in parties control
4) Disclosure statement - details extent of search and certificate - statement of truth done properly to best of knowledge
PROCESS
- 1 party goes through all documents they have, or have had - must be reasonable search
- other side then request what they want, apply to see what not allowed and specific disclosure for ones missing
- Court makes order for disclosure - sets out approach.
- standard disclosure, likely pre action disclosure and exchange documents at this point.
- duty to conduct a reasonable search = should be agreed before CMC
- parties have a duty to preserve documents particularly e-documents
- court issues order disclosure and states approach parties should take
- Standard disclosure where= documents relied upon, what is adverse to case or undermines or assists, supports other party
- to be disclosed must be in parties control.
E-disclosure
- includes emails
- CPR’s sets out how should be approached
- can lodge and file electronic documents questionnaire and file at court
- parties will agree, search reasonable and how should be disclosed.
- discuss and agree an approach, file summary approach prior to CMC
- file and exchange electronic documents questionnaire - in complex cases
Pre-action disclosure
- pre action correspondence may include willingness to disclose documents
- claimant can apply to court for documents prior to proceedings (claim form) in order to check if they have a case.
- Application made to the court, supported by evidence statement
- Court will allow if;
a) parties likely to face each other in proceedings
b) documents sought would be disclosed under standard disclosure and are in or have been in control of party
c) disclosure would fairly assist parties to resolve dispute with or without proceedings or save costs.
non-party disclosure
= application by party to non-party/3rd partly to disclose documents
- application to 3rd party, who now owns document, which is in the list of documents, and know is relevant.
- Application made following 3rd party refusing to disclose
- application made with evidence to support.
- Court will order non-party disclosure if docs are:
* in parties possession, custody or power
* relevant to case (support or adversely effect)
* help resolve proceedings, to dispose of claim fairly or save costs
Privilege
- where documents listed - named- but not able to be inspected - read.
- other party is entitled to see all documents in possession UNLESS no longer in possession or document is Privileged.
- Privilege can be waived and document can be provided by other side
2 x types privilege
1) Legal advice privilege
2) Litigation privilege
1) Legal advice privilege
- communications/correspondence between party and legal advisors.
- written given by sol/barrister in professional capacity with sole or dominant purpose of legal advice
- correspondence party and legal team, with sole dominant purpose of creating legal advice.
- broad
-CHECK record of attendance note, or correspondence, if between sol and client re game of golf then not privileged.
2) Litigation Privilege= if;
- at time made, in contemplation of litigation, realistic prospect, and;
- document sole and dominant purpose of obtaining info or advice in connection with litigation
eg: document to enable solicitors to decide if claim should be made, such as expert report, wit statements
- need to check when made and if realistic prospect litigation, and document made for that purpose.
Without prejudice communication
1) when 1 party genuinely tried to settle eg part 36 offer
2) Not privileged
3) BUT can’t be used as evidence, so incentive is if put in letter titled “without prejudice” CANNOT BE USED AS EVIDENCE
