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 - objective 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.
ISSUING & SERVING THE CLAIM FORM
ISSUING & SERVING CLAIM FORM
RULE
- party bringing proceedings must complete claim form and send to CT office with fee
- proceedings commenced when CT ISSUES claim form, which means CT seals with CT seal
- Once claim form issued by CT - proceedings officially begin
ADDITION & SUBSTITUTION OF PARTIES
- after submission of CF may need to add someone if find out some other party contributed to loss
- App must be made to the CT with evidence to add this, unless CF not yet been served
WHO CAN MAKE THE APPLICATION
- Existing party or someone who wants to be added.
- general procedure for applications - app notice + evidence + draft order and served on other side
-NOTE can’t add or substitute a claimant without that person’s permission and consent filed at court
GROUNDS REQUIRED BY COURT
WITHIN LIMITATION PERIOD
- “desirable to do so”- which means party is needed to:
* resolve dispute or issue connected to main dispute, or:
* remove a party, or:
* substitute a party no longer relevant because liability has passed to new party (note - if using this ground, a without notice application can be made?
IF OUTSIDE LIMITATION PERIOD
- proceedings must have started within the limitation period - meaning claim form must have been issued within limitation period, and:
* original party has been named by a genuine mistake; or
* original party is dead/bankrupt; or
* claim form cannot be carried on without new party
PROCEEDURE
1) submit CF to CT
2) CT issues CF - proceedings begin
3) do you need to add/substitute parties = Y, apply to CT if CF served
4) serve CF within 4 - 6 months
5) Alternative method apply to CT
6) serve PoC either with CF or within 14 days of CF (but always within 4-6 months
SERVICE OF CLAIM FORM WITHIN THE JURISDICTION - UNDER CPRS
- Once issued by CT MUST be served on def
- One of following steps must be completed - relevant steps within 4 calendar month time period (if in England and Wales)
- Method of service you use depends on facts
RELEVANT STEPS
1) IF def IN WRITING has given C business address of sol to use for claim form service or DEFS sol IN WRITING has told C that they are authorised to accept claim form at their business address. C MUST SERVE CF at sols bus address ( by leaving it there/post)
2) If DEF or DEFS sol has told C IN WRITING that they can accept service of the claim form by email and have supplied the email, C can use that email for service
3) DEF can also give an address for service - bus address or personal address, which C can then use by posting the claim form from there or leaving it at that address
4) Unless 1) applies C can use PERSONAL SERVICE and that can be done instead of using email or post if D has given an address for service. To serve personally, if you are suing an individual, leave the CF with that individual; if a company, leave it with a director, and if a partnership or LLP with a partner.
5) If D has not given an address or email for service and C chooses not to use personal service, C can use post or leave the claim form AT AN ADDRESS SET OUT IN THE CPR’s
* If C is suing an individual, the address is their usual address or last known place of residence. If the individual is a sole trader or being sued on behalf of a partnership, it can also be their place of business
* if company or LLP, the registered office address or principal place of business
* if above addresses are ones which DEF no longer resides or does business. C must take “ reasonable steps” to locate DEFS current residential or business address. If they still can’t find it. C should make an app for alternative method of service or at an alternative place
- also possible to have contractually agreed method of service. Check contract to see what that is. May be sued by claimant if there is one included instead of the CPR methods
SERVICE UNDER CA06/LLPA
- alternative to using CPR’s
- method under CA 2006 or LLPA 2002 if C is serving a limited company or partnership
- posting letter to its registered office (1st or 2nd class) or leaving it at the registered office.
- Date of service depends on method
- 1st class - next day unless sent on Saturday, then deemed served on Monday
- If leaving at an address, it will be that day - if a business day, if not, the next one
DEEMED DATES OF SERVICE UNDER THE CPRS’s
- if one of the CPR methods of service is chosen there are DEEMED dates of service
- which means as long as SERVED CORRECTLY, it will be DEEMED to have arrived at a certain date
- if correctly served - deemed date of service is SECOND BUSINESS DAY after method of service executed
- BUSINESS day NOT sat, sun or BH
- eg posted FRI deemed service date TUES
NOTE - ONLY relevant for particulars of claim - as you then know what time you need to serve your Partics of claim, if served separately from CF - BUT NOT the claim form
- For the CF must take steps before 4 calendar month ends, no set date.
- Date DOES matter for partics of claim
SERVICE BY ALTERNATIVE METHOD OR AT AN ALTERNATIVE PLACE
- CT may make order permitting service by alternative method, or at place different to one listed above eg personal service on defs sols, IF good reason to do so
- Claimant must make court app, with evidence to support.
- can apply to service of CF and PofC together or separately.
SERVING PARTICULARS OF CLAIM PofC
- PofC are parts of statement of case, along with claim form
- set out reasons for claim
- MUST be served on defendant as well
- MUST be ACTUALLY served within same time limits as for serving claim form in E & W (within 4 months) or 6 outside jurisdiction
- can be served WITH CF or AFTER CF
- if serve separately from CF MUST serve within 14 clear days of the DEEMED service of the claim form
- MUST actually serve within 14 days
-REMEMBER ONLY need to take relevant step within 4 months
PofC SERVED WITH CF
- claim form rules of service apply, ie follow claim form method of service and its deemed to take place the second business day after the method has been executed
CF SERVED FIRST AND THEN PofC SERVED SEPERATELY
- must be served within 14 days clear after service of CF
-BUT PofC must be served within 4 months of issue of CF
- So CF served when relevant step is taken
- BUT PofC must still be served within 4 calendar months of issue of the CF
- so EVEN if your CF is validly served by taking the relevant steps the day before the end of the 4 month period, you will have served the PofC late if you serve it with or after the CF because the deemed date of service will be after the 4 months period.
- Meaning - you have 14 days to serve PofC after service of CF, BUT if it is near end of 4 month period you may have less than 14 days
METHODS OF SERVICE IF Pof C SERVED SEPERATELY
Personal service or email
- if on or before 4.30 on that day =on that day
- if after 4.30 or on non bus day = next bus day
First class post/DX
- 2nd day after posting if bus day, next day if not.
DELIVERING OR LEAVING AT THE ADDRESS
- if left at an address on a business day before 4.30 pm= on that day, if not = next business day
NOTE - after proceedings start def must give C sols address for service of PofC - Personal service CANNOT be used
-HOWEVER if def has given an email for service in writing that email can ALSO be used, BUT only if def has ACTUALLY given email for service and CONFIRMED it is for service.
-CAN’T use email and claim correct service if not confirmed by def
- INCORRECT to just assume and serve, applies of service of CF to
- Personal service PofC ONLY used has given NO address and NO email for service
- As alternative to using CPR rules, the C if using a company or LLP can just post or leave the Pof C at defs registered office
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
- IF SJE - parties prepare joint instructions and share the cost of the expert
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
- document = anything in which information of any description is recorded
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
- governed by rules of disclosure
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.
In more complex multi track cases other orders can be made such as:
Specific disclosure
- disclosure on issue by issue basis
- order dispensing with disclosure
- disclosure of certain docs which are reasonable to disclose
- orders relating to electronic docs
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.
- CT expect parties to have discussed prior to CMC and submit summary of their agreement
- discuss and agree an approach, file summary approach prior to CMC
- file and exchange electronic documents questionnaire - in complex cases
- what is reasonable will be affected by number of documents - eg if thousands. Keyword searches are often used
Pre-action disclosure
- pre action correspondence may include willingness to disclose documents
- claimant MUST 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
- made after proceedings have commenced
- 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
- If order made will instruct X to disclose a specific number of docs and indicate which are not in their control and which are privileged
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.
- includes docs between sol and 3rd party and client and 3rd party
Without prejudice communication
1) when 1 party genuinely tried to settle eg part 36 offer
2) Not privileged
3) Must be disclosed BUT can’t be used as evidence, so incentive is if put in letter titled “without prejudice” CANNOT BE USED AS EVIDENCE
