DR Flashcards
what two factors need to be considered during track allocation?
1) overriding objective - cpr 1 - the car requires that cases are handled justly and at proportionate cost. both parties and their legal representatives must ensure they comply at each stage of the litigation.
- ensure parties are on equal footing
- saving expenses
- dealing with cases at proportionate value
- importance
- complexity
- finances
- ensuring expediency and fitness
- allotting court resources appropriately
2) allocation - cases are allocated to one of 4 racks - according to the value of the claim
value: the higher of either the claim, or counterclaim - disregards interest, contributory negligence, undisputed sums and costs.
what is provisional allocation?
court officers provisionally allocate claims to a track following service of the defence - notice is provided to all parties who must then complete a directions questionnaire.
small claims
less formal track with lower obligations - £10,000 or less.
5,000 for Personal injury
fast track
standard mid track with higher obligations - £10,001 -£25,000
small claims involving allegations of dishonesty are also allocated here.i
intermediate track
new track for claims between £25,001 and £100,000.
multitrack
complex high value track with high obligations but also allows for more flexibility - £100,001 or more
how is full allocation determined?
directions questionnaire - normally a more refined calculation of th claim value but also considers factors like the type of remedy, complexity and how much evidence there will be CPR 26
procedure for filling in the DQ
both parties cooperate to complete the document
file it at court on form N181 alongside a draft order for directions.
must be served by a date specified by the court.
if cooperation between the parties isn’t possible - the forms are filed separately.
what is the effect of non- completion of the DQ?
SEVERE CONSEQUENCES
money: non completion in a county court money only claim requires court service of a notice to complete and if not completed within 7 days of service - the entire claim is struck out.
other: non completion in all other claims is determined by the court and can result in strike out.
contents of the dq?
- settlement - whether the client has been advised on settlement options - parties are offered a 1 month stay to attempt settlement and require a good reason to refuse.
- court: why the case must be heard in the chosen court
- pre action protocols - whether they have been adhered to and if not hwy not
- case management - any applications made so far, objections to the provisional allocation, scope of disclosure required.
- experts - whether a single joint expert is suitable and if not details of separate experts and costs
- witnesses name and number of witnesses to be relied on at trial and purpose of each
- trial length - realistic estimate of trial length
- costs - a cost budget must be filed with the dq in the multi track
other relevant Information
parties should attempt to agree on directions in an attached draft directions order
usually standard directions fast track or chosen from a specimen menu in the multi track
when must a case summary be filed?
must be filed alongside the directions questionnaire in the multi track
detailing matters in dispute and matters agreed upon following statements of case. listed chronologically referencing evidence required to resolve the matters in dispute.
claimant will draft the summary, but with cooperation with the defendant where possible.
what is the effect of allocation to the small claims track? in terms of:
a) directions
b) disclosure
c) hearing
d) costs
a) simple directions aree issued by the court
disclosure and inspection is not conducted
hearing are basic with judgements made on statements of case and documentary evidence
typically costs are not recoverable
” to the fast track
Fast Track: Fast track claims are more complex, but largely standardised within the track itself.
(1) Directions: Directions are usually ‘Standard Directions’, unless altered by party agreement. This includes:
Expert: Single joint expert by default. At maximum, one expert per party per field, maximum two fields.
Expert Evidence: Generally written, not oral.
Timetable: From allocation: disclosure (4 weeks); witness statements exchanged (10 weeks); expert reports exchanged (14 weeks); pre-trial checklists issued (20 weeks); pre-trial checklists returned (22 weeks); trial (30 weeks).
(2) Disclosure: [Since intermediate track] standard disclosure is still an option but disclosure likely to be more limited than before. Court may direct that no disclosure takes place or specify the documents or classes of documents that parties must disclose.
(3) Hearing: Hearings are expected to last no more than one court day (5 hours).
(4) Costs: Fixed costs (see Costs).
standard directions fast track
timetable:
disclosure - 4 weeks from allocation
witness statements 10 weeks
expert reports - 14 weeks
pre trial checklists 20 weeks
trial 30 weeks
intermediate track
Intermediate track: Introduced to ensure that legal costs are more certain and proportionate across a wider range of civil claims.
(1) Directions: Court may fix a case management conference. Directions are likely to be standard. Parties need to submit their proposals atleast 7 days prior to the conference. Court will decide whether to fix pre-trial review.
- Parties: Maximum of three parties.
- Experts: Usual directions are one expert on either side unless the second expert is reasonably required and proportionate. Expert report must not exceed 20 pages.
Timetable: Standard period between giving directions and the trial will be no more than 30 weeks.
(2) Disclosure: Court may a) dispense with disclosure, b) order disclosure of documents on which a party relies and at same time any requests for specific disclosure, c) disclosure on issue by issue basis, d) disclosure of documents on which it would be reasonable to suppose may contain information which enables a party to advance its own case or to damage that of another party or leads to an equity which has these consequences, e) standard disclosure, f) any other reasonable disclosure.
(3) Hearing: No more than three days.
what is the effect of allocation to the multi track?
considerably more complex, expensive and directions are flexible and varied.
1) directions: differ by case, unless agreed between the parties. courts MAY apply standard directions, or determine bespoke directions from a directions menu at the case management conference.
2) disclosure - disclosure and inspection may be standard or bespoke.
3) headings are often longer.
4) unless agreed, costs are determined at a detailed assessment regarding costs.
what is the general process of deciding costs?
costs are a crucial element of civil litigation, covering fees, disbursements, hiring of experts sand solicitors as well as certain pre action costs
1) costs orders:
-as per CPR 44 depending on the track, the losing party is generally ordered to to pay the costs of the successful party - this will not however in practice cover the full extent of the costs.
2) assessment
- following trial, the court will generally be required to assess the costs of the winning party to determine how much the loser pays. this will differ between each track and each case (standard, indemnity)
what are interim cost orders
security for costs - defendant v claimant
interim cost application - claimant -> defendant
costs orders given to the different track:
1) small claims - only disbursements and certain fixed costs
2) fast track - fixed costs
3) intermediate - fixed costs
4) multitrack - costs are usually calculated by summary assessment for simple cases, and detailed assessment for complex and longer cases, unless agreed between the parties.
what are fixed costs?
certain costs are fixed in the CPR and cannot be assessed by the court. however they may be altered by agreement between the parties.
1) complexity band - there are 4 complexity bands per track
2) application to alter costs - parties can make an application for costs greater than fixed recoverable costs but this will only be ordered in exceptional circumstances. costs can be increased for unreasonable conduct.
3) Effect: Fixed recoverable cost cases will not require a costs budget in advance of trial or a cost assessment afterwards. The parties only need to select the assigned complexity band and read down to the stage at which the case ends in order to identify the relevant costs liability (net of VAT, disbursements and court fees). For example, a solicitor’s court appearance fee may be fixed at £1,000. The solicitor can still charge the client whatever they like, but the client can only recover £1,000 of that sum from the opponent.
(3) Examples: Examples of fixed costs include fees for default judgment, fees for enforcement of costs, and fees for an advocate’s court appearance on the fast track.w
what are cost management orders?
if parties are subject to a cost management order on the MT cost assessments will only relate to costs incurred prior to the costs budget. the last approved budget is accepted for all other costs unless there is good reason to depart from it.
summary assessment
simple multi track costs are summarily assessed at the end of trial, unless agreed.
1) statement of costs - parties file a written statement of their costs to the court and each other. this is 24 hours before an interim hearing or 2 days before the final hearing.
2) assessment - the court will determine the appropriate costs order
detailed assessment
complex multitrack claim costs are generally assessed by a detailed assessment following trial unless agreed. this is a separate hearing conducted by a costs officer usually a district Jude.
1) notice of commencement the receiving party must serve notice on the paying party within 3 months of judgement, outlining their intention to have costs assessed if they cannot be agreed between the partied - thy myst include a bill of their sought costs and supporting evidence
2) 2) Points of Dispute: The paying party has 21 days to serve points of dispute. If they do not dispute, the receiving party can ask the court to issue a costs order for the full amount of the bill provided, plus fixed costs and fees.
>The receiving party has 21 days to reply to any points of dispute.
(3) Provisional Assessment: For costs under £75,000, the court will assess costs in the absence of parties.
(4) Full Assessment: For costs of at least £75,000, provided the parties are in dispute, the court will conduct an oral hearing within 21 days of request.
>If the paying party does not reduce costs by at least 20% of the sum requested, they also pay for the hearing.
what is the formula for assessing costs on a) the standard basis and b) the indemnity basis
same for both summary and detailed assessments.
1) standard: awarded if reasonably incurred, reasonable in amount and proportionate to total costs of the matter. any doubt is construed in favour of the paying party
intermediate track is now on a standard basis.
2) indemnity basis - costs are awarded if reasonably incurred and reasonable in amount but do not need to be proportionate. any doubt is construed in favour of the receiving party.
reasonable and proportionate
a) reasonable
- conduct - the conduct of the parties and extent of efforts to resolve the dispute
- value of the claim
- importance
- complexity
- skill
-time - circumstances
- costs budget - the effect of the last approved cost budget.
b) proportionate
- sums
- other relics
- complexity
- paying party conduct
what are case management directions
directions are orders of the court which govern the steps the parties must take leading up to trial often referred to as case management
case management directions - small claims track
no directions are issued - litigants follow the CPR
CM directions - fast track
usually standard directions
case management directions - multi track
directions are often bespoke determined at the CMC
cost management process on the multi track
1) preliminary budget - parties provide details if their incurred costs and estimated future costs
2) budget discussion report
3) official budget - court approves or revises an official budget
4) cost management order - court generally orders that the official budget must be adhered to
preliminary budget
parties provide preliminary costs on precedent h
a) detailed breakdown of costs incurred so far
b) an estimate of future costs with reasons - includes a statement of truth signed by a senior legal representative
1) Filing: Must be filed at court by the correct date.
- Claim Less Than £50,000: Filed alongside Directions Questionnaire.
- Claim of £50,000 or More: Filed no later than 21 days before the first Case Management Conference.
(2) Non-Completion: Failure to file a budget on time means the party is treated as having filed a budget in respect of court fees alone. Future costs are irrecoverable - successful claims may become fruitless (Mitchell v News Group).
costs budget
court will approve incurred and agreed future costs, and determine future disputed costs in the form of an official budget.
1) costs hearing -
2) amendments - the budget can be altered by agreement or by court order if significant and unforeseen development arises - budget variation summary sheet on precedent h
3) relief may be granted against a party who has spent disproportionately prior to this stage.
what is a costs management order
Costs Management Order: Courts will typically make a ‘costs management order’, tying parties to the Official Budget.
(1) Effect: When assessing costs on the standard basis at the end of trial, the court will not depart from the last approved budget unless there is good reason to do so. As such, parties must rigidly adhere to the approved budget.
(2) Effect of No Order: If no order is made, the court has more flexibility when awarding costs, and will generally award costs that do not exceed the last approved official budget by more than 20%.
>Parties must provide a ‘Statement of Reasons’ if costs do exceed 20%. Court has discretion to award or not.
what is a case management conference?
multi track typically includes a cmc to discuss and revise directions throughout the case
1) first cmc listed on allocation - usually sufficient to order directions and resolve issues.
subsequent cmc may be listed to review progress
pre trial review may be listed close to trial to resolve any last minute issues.
procedure at the cmc
procedure: Case management conferences proceed as such:
(1) Attendance: A member and a legal representative of both parties must attend. They must have knowledge and authority to deal with any potential matters.
>Lack of knowledge or authority may lead to adjournment, with the guilty party ordered to pay wasted costs.
(2) Review: Court reviews steps up to conference, and determines whether directions have been complied with.
(3) Directions: Courts may issue further directions compliant with the overriding objective (these should take account of any financial imbalance between parties).
(4) Costs: Costs of the conference will be determined there and then (typically ‘costs in case’).
what provisions will the court make for vulnerable parties?
courts will provide greater provisions in respect of vulnerable parties and witnesses - should be identified as early as possible to make appropriate directions.
1) vulnerability - circumstances adversely effecting a person’s ability to participate in proceedings or give evidence. they can be personal, situational, permanent, temporary
2) directions: courts may alter directions pursuant and order special measures e.g. block screens, video links
what are the consequences of non compliance with court directions?
1) late compliance - opponents can request they sanction if they have no good reason for the delay
2) courts are very strict if a failure to comply jeopardises the date of trial which is regarded as sacrosanct.what a
what sanctions can be ordered for non compliance with court directions?
1) strike out
grounds: discloses no reasonable factual or legal basis
- comprises an abuse of process
- the party otherwise failed to comply with a rule, practice direction or court order
2) indemnity costs
- court may require party to pay opponent’s costs on the indemnity basis even if successful.
3) interest order: court may increase interest payable or decreased interest received on costs
4) unless order: court may strike out a case unless party complies with direction in given time frame can
can a party apply for relief from sanctions for failing to comply with court directions?
yes
1) post case: party must launch a full appeal if a sanction was applied at the end of a case
2) mid case: party must seek reprieve from sanctions applied during the case: N244 with evidence supporting.
relief is determined via the denton case:
1) the court must identify and assess the seriousness and significance of non compliance
2) consider the reason for non compliance
3) evaluate the circumstances of the case to deal with eh application fairly.
Effect: (a) Relief should be granted for non-serious breaches; (b) relief should be granted if there was good reason for non-compliance; (c) relief should be granted if sought promptly and fair on all parties.
which model direction deadlines require the court’s permission to amend?
- date of the cmc
- deadline for filing of pre trial checklist
- date of trial
