DR 4: Case Management and Disclosure Flashcards
What is the main objective of the CPR?
enable court to deal with cases justly and at proportionate cost
What are the 6 objectives of the CPR?
1) Ensuring parties on =footing
2) Saving expense
3) Dealing in case in ways proportionate to: Amount of money involved, Importance, Complexity, Financial position of parties
4) Ensure dealt with expeditiously and fairly
5) Allot appropriate share of courts resources
6) Enforcing compliance with rules/practice directions/orders
What must the court give effect to when making procedural decisions ?
overriding objectives of the CPR
Does the CPR place a positive duty on parties to help court further overriding objective?
Yes
What is the effect of the courts duty to actively manage cases imposed by the CPR?
Must tailor approach to individual cases, their role inc:
* Encourage parties cooperation
* Identify issues early
* Decide promptly which issues to fully investigate
* Decide order issues to be resolved
* Encourage ADR
* Help settle
* Fix timetables/control progress
* Consider if benefits justify cost of steps
* Deal with as many aspects on same occasion
* Deal with case without parties attending court
* Use tech Give directions to ensure trail proceeds quickly/efficiently
Under the duties imposed by the CPR, what must the courts do in respect of vulnerable parties/witnesses?
must order appropriate provisions to help parties being on equal footing/can participate fully in proceedings/give best evidence
What are the general steps for allocating a case to a track?
- When defence filed, court provisionally allocate track
- Court serves notice of proposed allocation, requiring parties to serve an completed directions questionnaire by specified date
What is a directions questionnaire used to do?
- Confirm track
- Assign case to complexity band if needed
- Determine directions for case management
If a claim has been provisionally allocated to the multi track, what documents should be prepared alongside a directions questionnaire?
- Case summary
- Disclosure report
- Costs budget & budget discussion report
- Draft order for directions
Must the parties cooperate in the completion of the directions questionnaire?
Yes inc for case management directions BUT if impossible, other party shouldn’t delay
Effect of failing to file a directions questionnaire?
- Claim for money in CC=court will serve notice requiring compliance within 7d or case/defence struck out
- All other cases=court will make such order it considers appropriate
What are the contents of a directions questionnaire?
- Settlement
- Why case needs to be in particular court
- if/why not pre action protocols complied with
- Case management info
- Experts-SJE suitable?
- Name/no of witnesses and points they’ll address
7.Trial- realistic time estimate - Costs-costs budget if legal rep and case likely on multi track
- Other info that’ll assist judge in managing
- Directions-attempt to agree and attach draft order
Contents of directions questionnaire: what should be included in terms of settlement?
Sol confirm explain need to settle, options, costs sanctions
Parties asked if want 1mo stay to attempt to settle
YES-court will stay
NO-party who objects provide reasons
OR-court can stay for any length
Contents of directions questionnaire: what case management info should be provided?
◊ Any apps made to court?
◊ Objections to provisional allocation/reasons
◊ Submissions on appropriate complexity band for fast/intermediate
◊ Scope/extent of disclosure (+proposals on how to deal with electric docs)
Contents of directions questionnaire: what info should be provided on directions?
Attempt to agree and attach draft order
Fast track: normally standard
Intermediate/multi: based on specimen
What cases are allocated to small claims track?
£10,000 or less
What cases are allocated to fast track?
Over £10k to £25k inclusive
What cases are allocated to intermediate track?
Less complex claims over £25k, under £100k
What cases are allocated to multi track?
Most complex, generally over £100k
What is disregarded when calculating amount of claim for allocation to track
- Interest
- Costs
- Contributory Negligence
- Any sum not in dispute
What other factors (other than amount) are taken into account when allocating to track
- remedy sought
- complexity of facts/law/evidence
- no. of parties
- value of counterclaim
- amount of oral evidence
- importance to non-parties
- views and circumstances of parties
Examples of types of cases normally on small claims track?
- Consumer disputes
- Disputes about goods ownership
- Landlord/tenant (not for possession)
- Lower value personal injury (for road traffic cases after 31 May 2021, damages for pain, suffering, loss of amenity mustn’t exceed £5k)
What types of litigants are normally on the small claims track?
litigants in person
What directions are given on the small claims track?
Simple, typically:
◊ Parties delivering copy of all docs they intend to rely on to others
◊ Requiring them to bring original docs to hearing
◊ Parties not allowed to rely on experts report with out permission
How are decisions decided on small claims track?
Hearing informal, if all agree, decision can be made on statement of case/doc not oral evidence
What directions are given on fast track?
Standard directions (may be more limited)
If parties agree on different, must be approved
What expert evidence is normally allowed on fast track
More limited (normally single joint expert unless court think there’s a good reason to)
How long do cases on fast track normally last?
max 1d expected
How are costs awarded on fast track?
fixed basis
What is the typical timetable for a fast track trial?
4w-disclosure
10w-exchange witness statements
14w-exchange experts reports
20w-court sends pre trial checklist
22w-parties file pre trial checklists
30w-hearing (trial)
Can parties agree to vary the timetable on the fast track?
Yes but NOT trial date/date for returning pre-trail checklists
Intermediate track: Max parties
3
Intermediate track: Max experts giving oral evidence on each side?
2
Intermediate track: max anticipated length of trial
3 days
What directions are normally given on intermediate track
Parties agree (likely to be standard directions)
OR court may fix discretionary Case management conference (CMC)
Time limit for parties submitting proposals for directions before CMC?
7 days before
What will a CMC deal with?
- Disclosure of docs
- Service of witness statements
- Expert evidence
- Whether to fix pre trial review
- Listing for trial
Intermediate track: How long is there normally between giving directions and trial?
20 weeks
How are costs awarded on the intermediate track?
fixed
Intermediate track: how many experts giving oral evidence are there likely to be
1 per party unless 2nd is reasonably required and proportionate
Intermediate track: how long can an expert report be?
20pages (excluding supporting materials)
Intermediate track: how long can a witness statement be?
30 pages
What directions are given on the multi track?
- Standard (+then fix timetable)if adequate
- fix CMC
What is the purpose of a CMC?
To identify the live issues between the parties and set a timetable for trial
Multi track: what is the courts role at a CMC?
- Review steps parties already taken
- Check compliance with directions
- Give directions for future steps
Who must attend a CMC and what are the consequences of not?
- If have legal rep: by individual whose familiar with case and has authority to make decisions
- If inadequacy leads to adjournment of hearing, court may order that other parties costs incurred in prepping/attending hearing are paid by sol/their firm
Multi track: when/why is a case summary prepped?
often prepared for CMC to assist judge in determining how case should proceed to trial
What documents are needed for the CMC?
- Directions questionnaire
- Case summary
- Disclosure Report
- Costs budget
- Budget discussion report
- Draft order
What orders are made in a CMC?
- Directions Order
- Costs Management Order
Multi track: can the timetable set at the CMC be amended?
Yes if parties agree, but need to apply to court to amend:
* CMC
* Pre trial review
* Return of pre trial checklist
* Trial/trial period
What direction is normally given about what to do if the claim is settled?
Inform court immediately and file a draft consent order giving effect to their agreement
What do directions include on the multi track?
Consider AR
Further info needed to clarify case?
Costs of CMC
Disclosure of docs and inspection
Simultaneous exchange of evidence
Expert evidence (SJE unless good reason and simultaneous exchange of sep)
Review CM?
Timetable to trial
What is the purpose of complexity bands?
Determine amount of fixed recoverable costs
Are the parties encouraged to seek to agree a complexity band?
Yes
What are the complexity bands on the fast track?
Band 1-defended debt, road traffic accident related, non PI
Band 2/3-diff types of road traffic PR, other types of PI
Band 4-professional negligence, other complex claims
What are the complexity bands on the intermediate track?
Band 1-defended debt, claims with only 1 issue in dispute where trial anticipated 1d max
Band 2/3-claims, inc PI where more than 1 issue (band 3 for more complex)
Band 4 -complex, serious issues of fact/law, anticipated 3d
What is the effect of failure to comply with directions?
Not generally an issue if parties co-operate and can meet certain dates
BUT any party can apply for order enforcing compliance/for sanction to be imposed
Trial date-CANNOT fail to comply, court wont give directions leading to postponement of trial unless circumstances exceptional
Generally, what cases does costs management apply to?
claims under £10mill
What is the purpose of costs management
For court to manage steps two be taken and costs to be incurred by parties to further the overriding objective
Ensures future costs are reasonable and dont become disproportionate
How are costs managed?
Parties must file costs budget which is a statement of costs already incurred and anticipated future costs
How does a party file a costs budget?
On prescribed form Precedent H
What types of costs does a costs budget consist of?
- Incurred costs-Detailed breakdown of costs/disbursements already incurred
- Budgeted costs-estimate of future costs
Formalities for costs budget
- dated
- verified by statement of truth,
- signed by senior legal rep of party
When must the cost budget be filed?
- Claims less than £50k: With directions questionnaire
- Over £50k: 21d before CMC
How are costs decided
Both parties file budget discussion report (Precedent R) no later than 7d before first CMC to highlight agreed and disagreed costs
Seek to agree (court wont touch)
If not, court will review
What is the judges role in relation to costs budgets
For costs not agreed between parties:
* Review costs by systematically cross referencing between parties proposed dirs and budget to ensure suggested costs are reasonable and proportionate to case
* Budget then revised as necessary
* Court normally conducts a costs and case management conference
How do you change a costs budget?
Use budget variation summary sheet (Precedent T)
Hard-must be agreed OR persuade court there’s significant developments
Costs budgets: What can be done if a party is acting oppressively and seeking disproportionate costs?
App to court which will grant such relief as is appropriate
Effect of failure to file a costs budget on time?
Party will be treated as having filed cost budged consisting only of court fees (so this is all they’ll be able to recover)
When will a costs management order be imposed
Always unless the judge is satisfies that the litigation can be conducted justly and at proportionate cost
What is the effect of a costs management order?
Court WONT DEPART from parties last approved/agreed costs budget unless satisfied there’s a good reason for doing so (court or other party agrees)
What will a costs management order do?
- Record extent to which incurred/budgeted costs are agreed
- Where budgeted (not incurred) costs not agreed, record courts approval after making appropriate revisions
- If incurred costs disputed, will be decided at the end of the trial
What is the effect of not having a costs management order?
- More flexibility when dealing with costs
- Where there’s a difference of 20% or more between costs claimed and set out in budget, receiving party must provide statement of reasons for difference and court will then decide whether additional amount can be recovered
What are the possible court sanctions to ensure compliance with directions?
- Striking out a statement of case
- Costs on indemnity or uplifted fixed costs
- Interest (reduced/increased)
- Unless order
Sanctions: when is striking out a statement of case common?
□ Statement of case discloses no reasonable grounds for brining/defending claim
□ Failure to comply with rule/practice direction/court order
Sanctions: what is an unless order
Claim/defence will be struck out unless a party takes a specific step
How can a party obtain relief from sanctions where the sanction is payment of costs?
Party has default right of appeal
What will the court consider when deciding whether to grant relief from sanctions (other than payment of money which is an appeal)
all circumstances of case, inc the need:
□ For litigation to be conducted efficiently and at proportionate cost
□ To enforce compliance with rules, practice directions and orders
What approach will the court follow when deciding whether to grant relief from sanctions (other than payment of money which is an appeal)
- assess seriousness or significance of relevant failure
- Consider why it occurred (not just sol forgot)
- Evaluate all the circumstances, inc whether trial date can still be met and the effect of failure to comply/granting of relief would have on each party
Are parties penalised if seek to take advantage of minor/technical mistake by opponent that has no effect on the litigation via sanctions?
Yes
What is disclosure and how is it done?
A party discloses a document by stating that it exists or has existed
Done by preparing and serving a list of documents on all other parties
Disclosure: what is a ‘document’?
anything in which info of any description is recorded (inc. written, audio, video, photo, electronic)
Disclosure on small claims track?
Min 14d before final hearing, Each party shall serve on every other party copies of all docs on which they intend to rely
Disclosure on Fast track
Limited to whats necessary to deal with the case justly and at proportionate cost
Standard disclosure is option but court may direct more limited approach
Disclosure on intermediate track
Limited to whats necessary to deal with case justly and at proportionate cost
Court will select one of following:
◊ Dispense with disclosure
◊ Docs on which parties rely and specific requests from other parties
◊ On issue by issue basis
◊ Docs which its reasonable to suppose may contain info which enables a party to advance its own case or to damage that of another party or which leads to an enquiry which has these consequences
◊ Standard disclosure
◊ Any other disclosure considered appropriate
Disclosure on mult track
Usually standard but court may tailor
How do parties notify court of their requirements for disclosure on the multi track?
Disclosure report
When must the disclosure report be filed and served on the multitrack?
14d before first CMC
What happens after the disclosure report on the multi track has been field and served?
At least 7d before first CMC, parties must agree proposal for disclosure that meets overriding objective and file at court
What is standard disclosure?
Parties must disclose :
1. Docs on which they rely
2. AND Docs which
1. Adversely affect their own case
2. Aversely affect another parties case
3. Support another parties case
for standard disclosure, what is a ‘case’?
those issues in dispute
Standard disclosure: what is the duty to disclose limited to?
Docs within the parties control, ie docs that:
1. Are/were in their physical possession
2. They have a right to possess
3. They have a right to inspect
What is the scope of a parties duty to search for documents?
Parties must make reasonable and proportionate search for all docs that:
1. Adversely affect their own case
2. Adversely affect another party’s case
3. Support another party’s case
Duty to search: what does ‘reasonable’ depend non?
◊ No of docs involved
◊ Nature/complexity of proceedings
◊ Ease/expense of retrieval
◊ Significance of doc
What are the limitations on the duty to search that may be imposed and the conditions on these?
LIMITATIONS
a) Not searching for docs that came into existence before a particular date
b) Specifying particular place
c) Limiting categories
CONDITIONS
◊ must be justified/not affect proper investigation into merits of case
◊ Must state limitations in list of docs
Disclosure: what do electronic docs include?
Inc those readily accessible from:
◊ computer systems
◊ Other electronic devices and media
◊Stored in servers/back up systems even if deleted
What does the CPR require parties to do in relation to electronic documents?
Parties must manage to minimise cost incurred in disclosure
Parties to agree (before dirs given/can use electronic disclosure questionnaire):
◊ categories of elec docs disclosed
◊ how will be exchanged
◊ format for inspection
◊ Limitations
Will discuss at CMC/may have sep hearing to deal with elec docs
What documents can be withheld from inspection?
Docs covered by:
1. Legal Advice privilege
2. Litigation privilege
What is legal advice privilege
Advise given by lawyers, licenced conveyancers, legal execs NOT non lawyers where sole or dominant purpose of the communication is to seek/give legal advice (if doc has dual purpose, est dominant)
What is litigation privilege?
- Doc must be a communication:
- Passing between client or lawyer and 3rd party
- Which came into existence when litigation was contemplated/ongoing
- Which was produced with a view to the litigation, either for sole/dom purpose of giving/receiving legal advice abt it or obtaining evidence to be used in it
What happens if you withhold inspection of disclosed documents?
Must still disclose in list but:
1. Other parties cannot inspect them
2. They’re described generically
How can you waive privilege of documents?
Occurs if send to other side
May occur during litigation bc it’s the only way to advance the proceedings
What is without prejudice correspondence?
Records info as part of a parties genuine attempt to settle so trial judge is unaware of content wheras disclosure process is just between parties
Must without prejudice correspondence be disclosed?
Yes and no privilege from inspection claimed
Form for making standard disclosure
N265
What is the structue of N265 for disclosure
- Formalities-court, claim number, partis
- Disclosure statement
- The list
Form N265: what is included in the disclosure statement?
- Sign to confirm extent of search
- Certify they understand duty of disclosure
- To best of their knowledge, duty has been carried out
- If excluding category of docs, explain reasons
Form N265: who signs the disclosure statement
not legal rep, if partnership, LLP, co, corp-individual whose responsible for overseeing disclosure process
Form N265: effect if a disclosure statement is false without honest belief in its truth?
contempt of court proceedings
Is the duty of disclosure continuing?
Yes, must update if new docs
Form N265: What are the parts of the disclosure list?
Part 1-docs within parties control which they don’t object to other party inspecting (numbered, listed in date order with concise description)
Part 2-docs in parties control but they object to inspection
Part 3-not privileged from inspection but no longer in party’s control
What happens if you dont include a document on the disclosure list?
Cant rely on at trial unless court permits
If harmful to claim, case may be struck out)
What documents does the other side have a right to inspect?
part 1 docs
How do you request inspection of part 1 docs?
□ In writing and granted within 7d (longer period often agreed between parties)
□ May ask for copies if agree to pay reasonable copying costs (large no=USB)
If you think the other side hasn’t disclosed something, what can be done?
- Write to other side first
- If fails, app notice form N244 + witness statement (explaining why party thinks doc exists) filed at court
Action to take if think specific disclosure is inadequate?
App for specific disclosure can be made under CPR r31.12, Request order that party:
◊ Carries out more extensive research
◊ Disclose any further docs located as result of that search
◊ Disclose specific docs that the party would have expected to see
Court takes into acc all circumstances of case, inc overriding objectives
How do you dispute privilege?
App to court under CPR r32.19 to challenge claim for privilege
What can the court do on an application disputing privilege?
◊ Require party to produce doc
◊ Invite any person to make reps
◊ Determine if doc correctly categorised
Is there a general obligation of pre action disclosure?
No
What is the only way to compel pre action disclosure?
Court order
Apply under CPR r13.16 where party unsure as to strength of case
App must be supported by witness statement
What must the court be satisfied of to compel pre action disclosure?
- Both applicant and respondent likely to be a party to subsequent proceedings
- Docs sought would come within standard disclosure
- Disclosure is desirable to dispose fairly of anticipated proceedings, assist the dispute being resolved without proceedings or save costs
Can you apply for disclosure against a non-party?
Yes it if would resolve an issue in the case
How do you apply for disclosure against a non party?
Application must be supported by evidence and disclosure will only be ordered if:
*Docs in question are likely to support the applicants case/adversely affect the case of another party
*Disclosure is necessary to dispose fairly of case/save costs
