DR

Question 1

What are the aims of case management?

Answer 1

It aims to promote justice but in a way which makes the best use of the court’s resources, to ensure cases are pushed through efficiently and effectively.

Question 2

How does part 3 achieve these aims?

Answer 2

It provides the court with wide-ranging powers including to:
- make, vary or revoke orders
- to strike out a party’s statement of case and
- to impose penalties on a party who falls short in some way.

Question 3

What are the 6 objectives that the court should seek to achieve when dealing with cases?

Answer 3

1) Ensuring that the parties are on equal footing
2) Saving expense
3) Dealing with the case in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party
4) Ensuring that the case is dealt with expeditiously and fairly
5) Allotting to it an appropriate share of the court’s resources whilst taking into account the need to allot resources to other cases AND
6) Enforcing compliance with rules, practice directions and others.

Question 4

What positive duty is imposed on the parties involved in the case?

Answer 4

The parties are required to help the court to further the overriding objective.

Question 5

How does the court give practical effect to the overriding objective?

Answer 5

The court must actively manage cases.

Question 6

What type of things are included in the court’s active role? (Card 1 of 2)

Answer 6

1) Encouraging the parties to co-operate with each other in the conduct of proceedings.
2) Identifying issues at an early stage
3) Deciding promptly with issues need to be fully investigated and dealt with at trial.
4) Deciding the order in which issues are to be resolved.
5) Encouraging the parties to use ADR procedures if appropriate.
6) Helping the parties to settle the case.

Question 7

What type of things are included in the court’s active role? (Card 2 of 2)

Answer 7

7) Fixing timetables or otherwise controlling the progress of the case.
8) Considering whether the likely benefits of taking a particular step justify the cost of taking it.
9) Dealing with as many aspects of the case as it can on the same occasion.
10) Dealing with the case without the parties needing to attend at court.
11) Making use of technology and
12) Giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Question 8

What are some examples that might make a party/witness vulnerable?

Answer 8

Communication or language difficulties (including literacy)

Physical disability or impairment

Health condition

Question 9

What may the court do if they realise someone is vulnerable?

Answer 9

May order appropriate provisions e.g. allowing a party/witness to give evidence remotely by video conference

or questioning them through an intermediary e.g. a translator.

Question 10

What is allocation to a track and what does it achieve?

Answer 10

Allocation to a track is where cases are allocated to different tracks or routes.

This ensures that the most difficult and high value claims receiver greater resources and attention than simple matters.

Question 11

What is the small claims track?

Answer 11

The small claims track requires the least formality (as the claims are low value) and are often conducted by litigants in person (people unrepresented by solicitors).

Question 12

What are the 3 other tracks outside the small claims track?

Answer 12

The fast track - standard route along which most cases proceed.

Intermediate track

Multi-track which incorporates greater flexibility to reflect the variety and complexity of these cases.

Question 13

Who initially makes the decision as to track allocation?

Answer 13

A court officer - though this is only confirmed after the involvement of the parties.

Question 14

What happens after the defence is filed? (Regarding tracks)

Answer 14

When a defence is filed, the court will provisionally decide which track appears the most appropriate for the claim.

Question 15

Following this, then what does the court do?

Answer 15

The court will then serve on the parties a notice of proposed allocation, requiring them to file and serve a completed directions questionnaire by a specific date.

Question 16

What is a directions questionnaire?

Answer 16

This is a KEY DOCUMENT in the progress of a case and will be used by the court to confirm the track, to assign the case to a complexity band if appropriate and to determine directions for case management.

Question 17

What other documents should also be prepared for claims that have been provisionally allocated to the multi-track?

Answer 17

• A case summary
• A disclosure report
• A costs budget and budget discussion report.

Question 18

What should accompany the return of the questionnaire?

Answer 18

A draft order for directions.

Question 19

What must the parties to regarding the directions questionnaire?

Answer 19

They must consult with one another and co-operate in completing it, including attempting to agree case management directions.

Question 20

What happens if the parties don’t agree?

Answer 20

If one party is unwilling to compromise, the other parties should still file their completed questionnaires.

Question 21

What is the settlement part of the directions questionnaire? (Form N181)

Answer 21

The solicitor must confirm that they’ve explained to their client the need to TRY to settle, the options available and the possible costs sanctions if the client refuses to engage.

The parties are asked whether they want a one month stay (suspension of proceedings) to attempt to settle the matter at this stage.

If they all agree, the court will stay (pause) proceedings for one month.

If not, the party who objects must provide reasons WHY they consider it inappropriate.

Alternatively, the court may - of its own initiative, whether or not any party has requested it, order a stay of length for this purpose.

Question 22

What is the court part of the directions questionnaire? (Form N181)

Answer 22

Reasons why the case needs to be heard in a PARTICULAR COURT should be stated.

Question 23

What is the pre-actions part of the directions questionnaire? (Form N181)

Answer 23

The parties must state whether they have complied with any relevant pre-action protocol and, if not, explain their reasons.

Question 24

What is the case management part of the directions questionnaire? (Form N181)

Answer 24

Need to explain whether any applications have been made to the court.

Whether any objections to the provisional allocation of the case and reasons for requesting a different track.

Submissions on the appropriate complexity band for fast and intermediate track cases and

The scope and extent of disclosure of documents including proposals for how to deal with electronic documents.

Question 25

What is the experts part of the directions questionnaire? (Form N181)

Answer 25

The parties should indicate whether the case is suitable for a single joint expert and if not, provide details of the expert evidence that they wish to rely on at trial including cost.

Question 26

What is the witness part of the directions questionnaire? (Form N181)

Answer 26

The parties must name or provide the number of witnesses of fact they intend to call at trial and identify the points the witnesses will address.

Question 27

What is the trial part of the directions questionnaire? (Form N181)

Answer 27

Must provide a realistic estimate of how long the trial will last.

Question 28

What is the costs part of the directions questionnaire? (Form N181)

Answer 28

If a party is legally represented and the case is likely to be allocated to the MULTI TRACK, a costs budget must be filed.

Question 29

What is the other information part of the directions questionnaire? (Form N181)

Answer 29

Any other information that might assist the judge in managing the claim should be stated, including applications that the party intends to make.

Question 30

What is the directions part of the directions questionnaire? (Form N181)

Answer 30

The parties should attempt to agree directions and a draft order must accompany the questionnaire.

For the fast track, this will usually be standard directions.

For intermediate and multi-track claims, directions should be based on the specimen directions which are listed on the Ministry of Justice website.

Question 31

What consequences occur if a party fails to file the directions questionnaire? (In the county court)

Answer 31

If the claim is for MONEY in the County Court, the court will serve a notice on the defaulting party requiring compliance within 7 DAYS.

Failure to do so results in the party’s statement of case being automatically struck out.

Question 32

What consequences occur if a party fails to file the directions questionnaire? (In all other courts apart from county)

Answer 32

The court will make an order as it considers appropriate.

This may include an order for directions, to strike out a statement of case or to list the matter for a case management conference.

Question 33

Outside of the financial value of a claim (which is the most important) and the complexity of the matter, what other factors should the court have regard to when deciding a claim?

Answer 33

The remedy sought, the complexity of the facts and the law, the number of parties involved, the value of any counterclaim, the amount of oral evidence and the circumstances of the parties.

Question 34

What cases go to the small claims track?

Answer 34

Claims for £10,000 or under

Question 35

What cases go to the fast claims track?

Answer 35

Claims valued between £10,001 and £25,000 inclusive

Question 36

What cases go to the intermediate claims track?

Answer 36

Less complex claims valued at more than £25,000 but not more than £100,000

Question 37

What cases go to the multi-track ?

Answer 37

The most complex claims, generally with a value over £100,000

Question 38

What amounts are disregarded?

Answer 38

Interests, costs, contributory negligence and any sum not in dispute

Question 39

Will the court generally aggregate a claim and a counterclaim?

Answer 39

No, they will not. The largest of them will usually determine the financial value (and also what track it’s allocated to).

Question 40

For small claims, what financial value claim would be put on this track? Please mention normal claims and personal injury claims.

Answer 40

For normal claims, it’s a claim which is £10,000 or less.

For road traffic cases occurring after 31st May 2021, the damages claimed for the pain, suffering and loss of amenity must not exceed £5000.

Question 41

What types of claims would be featured in the small claims track?

Answer 41

Consumer disputes

Disputes about ownership of goods

Disputes between a landlord and tenant (but not for possession).

Also lower value personal injury claims.

Question 42

What parts of the civil procedure rules (CPR) do not apply to the small claims track and why?

Answer 42

Disclosure, inspection and provisions relating to evidence and experts don’t apply.

Simple directions will be issued by the court to reflect that solicitors are not normally involved and costs generally can’t be recovered from the losing party.

Question 43

What would typical directions include for small track claims?

Answer 43

Typical directions would include:

• Each party delivering to the others copies of all documents they intend to rely on
• A requirement for them to bring the original documents to the hearing
• The parties not being allowed to rely on an expert’s report without express permission from the court.

Question 44

For small track claims, is the hearing formal or informal and is oral evidence needed?

Answer 44

Informal hearing

And if all parties agree, a court can make a decision based on the statements of case and documents submitted rather than by hearing oral evidence.

Question 45

Why is fast track appropriate for some cases as opposed to the intermediate and multi-track?

Answer 45

Provides a quicker, simpler procedure than the immediate and multi-tracks for lower value cases which do not require detailed preparations and a lengthy trial.

Generally, only cases where the trial is expected to last NO LONGER THAN ONE DAY are generally suitable for the fast track.

Question 46

What is the financial value of claims on the fast track?

Answer 46

On or within the range of £10,001 - £25,000

Question 47

What is the timetable, assigned by the court, for standard directions?

Answer 47

These periods run from the date of allocation.

Disclosure - 4 weeks
Exchange of witness statements - 10 weeks
Exchange of experts’ reports - 14 weeks
Court sends pre-trial checklists - 20 weeks
Parties file pre-trial checklists - 22 weeks
Hearing (trial) - 30 weeks

Question 48

What happens if the parties agree different directions?

Answer 48

These must be approved by the court.

They may also agree in writing to vary the timetable but not the trial date nor the date for returning the pre-trial checklists.

Question 49

What are the 4 requirements for putting a claim on the intermediate track?

Answer 49

Must be valued at over £25,000 but not more than £100,000.

The claim must involve a MAXIMUM of 3 parties

No more than 2 experts giving oral evidence and

An anticipated trial of 3 days maximum.

Question 50

On the intermediate track, does the court have to fix a case management conference?

Answer 50

No, this is up to the court’s discretion.

Question 51

If they do choose to fix a case management conference, what do the parties have to do and when?

Answer 51

The parties must either agree appropriate directions (likely to be standard directions) or submit their proposals to the court at least 7 days prior to the conference.

Question 52

What matters are to be dealt with during the case management conference?

Answer 52

Disclosure of documents

Service of witness statements - should not exceed 30 pages.

Expert evidence, with oral expert evidence being limited to one witness per party except where a second expert is reasonably required and proportionate. Any expert report must not exceed 20 pages including details of the issues, the conclusions and the reasons for these but excluding any supporting materials such as photos, plans and academic articles.

Whether to fix a pre-trial review

Listing for trial (which must not exceed 3 days)

Question 53

What is the standard period between giving of directions and trial?

Answer 53

The standard period between the giving of directions and trial will be no more than 30 weeks.

Question 54

What happens if the parties have agreed directions (which must include a timetable of the progress of the case to trial)?

Answer 54

The court may approve these without a hearing.

Question 55

What tracks have complexity bands?

Answer 55

The fast and intermediate tracks

Question 56

What will the complexity bands determine?

Answer 56

The amount of fixed recoverable costs

Question 57

For the fast track, what are the complexity bands?

Answer 57

Band 1 - defended debt claims and road traffic accident related, non personal injury claims.

Band 2 and 3 - various road traffic accident personal injury claims and other types of personal injury claims.

Band 4 - professional negligence and other claims classified as complex.

Question 58

For the intermediate track, what are the complexity bands?

Answer 58

Band 1 - defended debt matters and claims with ONLY ONE issue in dispute where the trial is anticipated to take NO MORE THAN 1 DAY.

Band 2 and 3 - For claims, including personal injury, where there is MORE THAN 1 ISSUE IN DISPUTE. Band 2 is used for less complex claims whereas more complex matters will be allocated to Band 3.

Band 4 - For the most complex claims where serious issues of fact and law are to be considered and the trial is anticipated to take 3 days.

Question 59

What are the parties encouraged to do regarding the band?

Answer 59

Agree on the complexity band. If they don’t, the court will assign the case.

Question 60

What are the differences between the fast track and intermediate track regarding standard directions?

Answer 60

The fast track has standard directions but may be more limited whereas the intermediate track has standard directions (usually) but may be more tailored to the individual case.

Question 61

What are the differences between the fast track and intermediate track regarding expert evidence?

Answer 61

For the fast track, the expert evidence is more limited - there is usually a single joint expert unless there is a good reason to appoint separate experts and the court will rely on the written report at trial.

For the intermediate track, expert evidence is also more limited. The main body of the report is restrict to 20 pages and usually only 1 expert will give oral evidence at trial for each party - unless a second is reasonably required and proportionate.

Question 62

What are the differences between the fast track and intermediate track regarding trial times?

Answer 62

For fast track claims, the trial is expected to last no more than one day.

For intermediate claims, the trial is expected to last no longer than 3 days.

Question 63

What do the fast and intermediate track have in common in regards to costs?

Answer 63

Both types of claims on the fast and intermediate tracks are awarded on a fixed costs basis.

Question 64

What claims are reserved for the multi track?

Answer 64

Claims over £100K and cases which involve complex legal issues.

Question 65

If the court decides to give standard directions for a multi track claim, what will the court usually do alongside this?

Answer 65

• Give directions for the management of the case
• Set up a timetable for the steps to be taken up to trial

Question 66

What if the claim is more complex on the multi track? What type of approach will the court take?

Answer 66

The court will take a flexible approach - this recognises that the time requires for the parties to complete each step may be considerably longer than on the fast track and some cases on the intermediate track.

Here, the court will fix a case management conference to ensure appropriate directions are given.

Question 67

What types of steps will the CMC take?

Answer 67

• The CMC will review the steps the parties have already taken to prepare the case.
• Check their compliance with any directions the court has made and
• Consider and give directions about future steps to ensure the claim proceeds in accordance with the overriding objective.

Question 68

Can the court order more CMCs (case management conferences) during the case?

Answer 68

Yes, to review the progress that the parties have made.

Question 69

Who must attend the case management conference?

Answer 69

If a party has legal representation, this person needs to attend the CMC as they are familiar with the case and has the authority and information available to deal with any matter that may reasonably be expected to arise (e.g. fixing the timetable, identifying issues and matters of evidence).

Question 70

What happens if someone who isn’t familiar with the case turns up to the CMC?

Answer 70

May lead to the adjournment of the hearing and the court may order that the solicitor personally or their firm have to pay back the other party’s costs incurred preparing for and attending the hearing. (A wasted costs order),

Question 71

What is the purpose of a case summary (prepared for the CMC)?

Answer 71

The case summary helps to describe what matters are still in dispute and which are agreed.

Question 72

What should the case summary set out?

Answer 72

• A brief chronology of the claim
• The factual issues that are agreed and those that are not
• The evidence needed to decide them.

Question 73

Who is responsible for preparing the case summary?

Answer 73

The claimant (but this should be agreed with the other parties if possible).

Question 74

Does the case summary need to be signed and dated?

Answer 74

Yes

Question 75

What is the purpose of the order for directions?

Answer 75

The aim is to ‘provide a road map’ to take the proceedings all the way to trial in a cost-effective and efficient way.

Question 76

For multi-track claims, what types of things will be listed in the directions?

Answer 76

• Disclosure of documents and inspection
• Simultaneous exchange of factual evidence (witnesses)
• Expert evidence - single joint expert (unless a good reason not to) and simultaneous exchange of separate expert evidence
• Review CMC
• Timetable to trial
• Consider ADR
• Costs of CMC
• Whether further information is required to clarify a party’s case

-

Question 77

On the multi track claim, what 4 things can the parties NOT change without making an application to the court?

Answer 77

1) Any case management conference

2) A pre-trial review

3) The return of a pre-trial checklist or

4) The trial or the trial period.

Question 78

What happens if the claim is settled? What must the parties do?

Answer 78

The parties will usually be direct to inform the court immediately and to file a draft consent order which gives effect to their agreement.

Question 79

What happens if a party fails to keep precisely to the directions timetable?

Answer 79

This will generally not be an issue as long as the parties co-operate and are able to meet certain key dates such as the CMC and the trial.

Question 80

What happens if a step is missed by one of the parties regarding the directions?

Answer 80

Any other party may apply for an order ENFORCING COMPLIANCE and/or for a sanction to be imposed.

Question 81

How important is the trial date?

Answer 81

The trial date is sacred and the court will NOT ALLOW FAILURE TO COMPLY WITH DIRECTION to postpone the trial - unless the circumstances are exceptional.

Question 82

What does costs management allow the courts to do?

Answer 82

It allows the courts to manage both the steps to be taken and costs to be incurred by the parties in multi-track cases.

Question 83

What monetary amount of claims are excluded from the costs management process?

Answer 83

Generally, only claims of £10 million or more are excluded from the process.

Question 84

What is the aim of costs management?

Answer 84

To ensure future costs are reasonable and don’t become proportionate by determining what actions should be taken in the future and at what expense.

Question 85

How are costs managed by the parties?

Answer 85

The costs are managed by the parties through being required to provide a costs budget.

Question 86

What is included in the costs budget?

Answer 86

• A detailed breakdown of the costs and disbursements already incurred
• An estimate of future costs and the assumptions on which those are based for the future phases of the proceedings - case management, disclosure, evidence, pre-trial review, trial preparation and trial stages, along with any ADR, settlement discussions and contingencies (budgeted costs).

Question 87

What needs to be done with the costs budget?

Answer 87

It must be dated and verified by a statement of truth signed by a senior legal representative of the party.

Question 88

What must the parties do next regarding costs budgets?

Answer 88

Costs budgets must be filed with the directions questionnaire for claims of less than £50,000 and

No later than 21 days before the CMC for all other claims.

Having done this, the parties must complete a budget discussion report no later than 7 days BEFORE the CMC.

Question 89

What is in the costs budget report?

Answer 89

This itemises the figures for phases that are agreed and those that are not, with a brief summary of the grounds of dispute.

Question 90

What is the judge’s role in the costs budget?

Answer 90

The judge will review those costs which are disputed by systematically cross-referring between the parties’ proposed directions and their budgets to ensure the suggests costs are reasonable and proportionate to the case in hand.

The budget will then be revised as necessary.

The court normally conducts a costs and case management conference at the same time but they may be held separately in complex cases.

Question 91

What if a party wants to change a costs budget?

Answer 91

Once a costs budget has been agreed/approved by the court, it is extremely difficult to amend or update it.

Inadequacies and mistakes will not be rectified so it is important to draft this with great care.

Question 92

What circumstances will the costs budget be able to be changed?

Answer 92

Only if the other party agrees (v unlikely)

The court can be persuaded that there have been significant developments e.g. the need for an additional expert’s report that couldn’t have been anticipated (rare).

Question 93

What must be filed if the costs budget is revised?

Answer 93

The parties must file a budget variation summary sheet.

Question 94

What if a party acts oppressively in regards to costs?

Answer 94

If one party considers that another is acting oppressively in seeking to cause the applicant to spend money disproportionately on costs, an application can be made to the court which will grant such relief as may be appropriate.

This is to ensure that parties with ‘deep pockets’ don’t take advantage of their financial position to discourage their opponent from continuing with litigation.

Question 95

What happens if a party files their costs budget late or not at all?

Answer 95

There are SIGNIFICANT consequences for the party and (potentially) their lawyers).

Unless the court agrees otherwise, the party will be treated as having filed a costs budget report consisting of only the court fees.

Therefore, unless the court gives relief from this AUTOMATIC SANCTION, that party will NOT be able to recover any of its future legal costs, apart from court fees, from another party.

Question 96

What is a costs management order?

Answer 96

A costs management order is imposed by the court and, in the order, the court will record the extent to which any incurred or budgeted costs are agreed between the parties AND

in respect of the budgeted costs that are NOT agreed, record the court’s approval after making appropriate revisions.

Question 97

What is the effect of a costs management order?

Answer 97

The effect of a costs management order is that the court will thereafter control the parties’ budget in respect of recoverable costs.

This means that if at trial, one party is order to pay the other’s costs, the court will NOT depart from the receiving party’s last approved or agreed budget (unless there are good reasons to do so). This means that the parties are tied to their costs budget figures even if the litigation proves far more expensive than anticipated.

Question 98

What is the effect if there is no costs management order?

Answer 98

If there is no costs management order, there is more flexibility when dealing with costs.

Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs set out in the budget, the receiving party has to provide a statement of the reasons for this difference.

It is then a matter for the court to decide whether the additional amounts can be recovered.

Question 99

When may the court sanction: striking out a statement of cases be used?

Answer 99

When the statement of case discloses NO REASONABLE GROUNDS for bringing or defending the claim. - This can include when facts are not included about what the claim/defence is about (e.g. money owed £5000) or where the facts do not set out any legally recognisable claim or defence.

There has been a failure to comply with a rule, practice direction or court order.

Question 100

What are 3 other sanctions aside from striking out a statement of case that can be used by the court?

Answer 100

1) Costs - A common sanction is to require the party in default to pay the other party’s additional costs on an indemnity (penalty) basis or to provide an uplift on the fixed costs.

2) Interest - Orders could be made increasing or decreasing - depending on which party is at fault - the interest payable on any damages.

3) The unless order - if a party hasn’t taken a step in the proceedings in accordance with a court order, an application may be made to the court for an ‘unless order’. E.g. ‘unless D files a full defence setting out his reasons for denying the debt is due, within 7 days of service of the order, the defence will be struck out’.

Question 101

If a party wants to obtain relief from a sanction, what must it do?

Answer 101

It must apply promptly and support their application with evidence addressing the factors below:

In Denton v TH White - the appeal court ruled that, when considering a party’s failure to comply with any rule, practice direction or court order, the court should adopt a structured approach as followed:

a) The first stage is to identify and assess the seriousness or significance of the relevant failure - if a breach wasn’t serious or significant, relief is usually granted.

b) The second stage is to consider why the failure or default occurred.

c) The third stage is to evaluate all circumstances of the case so as to enable the court to deal justly with the application. E.g. whether the trial date could still be met and the effect of the failure to comply/the granting of relief would have on each party,

Question 102

What are judges general approach to granting relief from sanctions?

Answer 102

Usually have a robust stance on this and the parties will find it difficult to convince the court to grant relief.

However, they have also said that a party could be penalised if they attempt to unreasonably take advantage of a mistake by an opponent for a minor breach which has no effect on the litigation.