Dr 4 - Disclosure Flashcards
Overriding objective
Justly and at proportionate cost
Six objecties -
equal fotting
saving expense
dealing with case in proportionate ways (money, importance, complexity of issues and financial position).
expeditiously and fairly
allotting appropriate share of courts resources
enforcing compliance with rules.
parties required to help.
Court must actively manage.
Active role of court;
encouraging co-operation
identify issues
deciding promptly what needs to be investigated
deciding order in which issues to be resolved.
Encouraging ADR
helping parties settle
fixing timetables
likely benefits
dealing with as many aspects
making use of technology
giving directions to ensure trial proceeds quickly and efficiently.
May allow witness to give evidence remotely.
Allocation to track
Court officer.
When defence filed decide which track
Court will serve on parties notice of proposed allocation, requiring them to file and serve completed directions questionairre by specified date.
Multi-track needs;
case summary
disclosure report
costs budget and budget discussion report.
Draft order for directions.
Directions questionnaire
Consult one another and co-operate.
Including agreeing case management directions.
Form N181
Contents;
A settlement - need to try to settle. Asked whether want one month to stay to attempt to settle.
Party who objects must provide reasons.
Court may order stay regardless.
B Court - reason why case needs to be heard at particular court
C Pre-action protocols - whether complied with pre-action protocols
D - Case management information -
applications made to court
objections to provisional allocation of case and reasons for requesting diff track
scope and extent of disclosure of documents including how to deal with electronic
E - Experts - indicate whether case suitable for single joint expert, if not expert they wish to rely on and cost
F - Witnesses - Name or number of witness they intend to cal, identify points they will address
G - trial - realistic estimate of how long trial will last must be given
H - costs - multi-track, cost budget (and legally represented
I - other information - any other information, including applications intends to make
J - directions - attempt to agree direction and draft order
Fast track - standard directions
Multi-track - based on specimen directions - listed on Ministry of Justice Website.
Failure to file
Claim for money in Country court. Count serve notice on defaulting party requiring compliance within seven days - failure struck out.
Other cases - order as it consider appropriate. Order for directions, strike out or case management conference.
Which track?
Small claims
Small claims -
£10,000 or less.
Road traffic must not exceed £5,000.
Type - consumer disputes, disputes about ownership, landlord and tenant (not for possession)
Lower value personal injury.
Procedure -
Disclosure , inspection and evidence and experts do not apply.
Typical directions -
each party delivering to other copies of all documents on which intend to rely
requirement for original documents to hearing
parties not being allowed to rely on expert report without express permission.
Fast track
Between £10,001 and £25,000
-Will also take into account likely length of trial. (one day if longer not suitable).
Procedure -
standard directions. Timetable (typical)
Disclosure 4 weeks
Exchange of witness statements (10 weeks)
Exchange of export report - 14 weeks
Court sends pre-trial checklist - 20 weeks
Parties file pre-trial checklist - 22 weeks
Hearing - 30 weeks.
Directions standard so not tailored
Expert evidence more limited (usually single joint)
Not longer than a day
Power to award costs more limited (summarily at end of trial)
Multi-track
More than £25,000
Court usually;
give directions
set a timetable for steps to be taken up to trial
More complex -
fix case management conference (CMC) to ensure appropriate directions.
CMC;
review steps parties taken to prepare
check compliance with directions
consider and give directions about future steps
CMC -
legal representative must attend who is familiar.
If inadequate court may order pay costs.
Case summary -
prepared for CMC. Brief chronology of claim, factual issues that are agreed and disputed, evidence needed to decide them.
C responsible but if possible by both parties.
Standard may be more suitable for simple, but more complex above method.
Parties may agree in writing to vary timetable.
However cannot change;
CMC
pre-trial review
return of pre-trial checklist
trial or trial period
If settled should inform court (overriding objective).
Issue of costs of CMC determined and order be made for costs.
Failure to comply with directions
If fails to keep to timetable.
Not generally issue, provided co-operate and meet key dates such as CMC and trial.
If a step is missed;
any party may apply for order enforcing compliance and/or sanction
Court will not allow failure to comply with directions that lead to postponement of trial, unless exceptional circumstances.
Cost management
Only £10m or more excluded from this.
Cost budget (H);
detailed breakdown of cost and disbursements (incurred costs)
estimate of future costs and assumptions on which those based for future; CM, disclosure , evidence, pre-trail review, trial preparation and trial stages along with ADR and settlement discussions (budgeted costs)
Must be dated and verified with statement of truth.
Must be filed;
with directions questionnaire for claims of less than £50,000 and
no later than 21 days before first CMC for all other claims.
Must then complete budget discussion report no later than 7 days before CMC.
itemises figures that are disputed
Judge will review by cross-referencing.
Revised as necessary.
Can only change if other parties agree.
Or
Court persuaded there have been significant developments.
File budget variation summary sheet.
If one party acts oppressively to increase cost application can be made to grant relief.
Failure to file cost budget on time
Treated as having filed cost budget consisting only of court fees (unless court amends).
Cost management order
Order imposed unless judge satisfied that can be conducted justly and at proportionate cost.
In order court will;
record extent to which incurred or budgeted costs are agreed
and
ones not agreed record counts approval after making revisions.
Court therefore control budget in respect of recoverable costs.
If ordered on standard basis - court not depart from receiving party last approved or agreed budget unless good reason to do so.
No cost management order -
diff of 20% between cost claimed and budget, receiving party must provided statement for reasons of difference.
Court will then decide.
Court sanctions
Striking out statement of case -
no reasonable grounds for brining or defending claim (in statement of case)
-and
failure to comply with a rule, PD or court order.
Costs - pay other costs on indemnity basis.
Interest - increasing or reducing depending on who at fault.
Unless order -
party not taken step in proceedings in accordance with court order.
Relief from sanctions
Unless costs (party will have to appeal)
Court will consider -
need to be conducted efficiently and at proportionate cost
enforce compliance with rules, IDs and orders party must act promptly and support with evidence.
Approach -
identify and asses seriousness or significance of failure
(if not may give relief)
Why failure or default occurred
Evaluate all cirumstances
(whether trial date could still be met etc..)
Disclosure
After statement of case court issue directions.
Discloses by stating it exists or has existed.
By preparing and serving list of documents on all other parties.
‘Documents’ - information of any description recorded.
Small claims - 14 says before final hearing , file and serve on every party cookies of all documents on which they intend to rely.
Fast track - standard disclosure
Multi-track - Standard but tailored.
filed and served - not less than 14 days before CMC
Not less than 7 days before CMC parties must discuss and seek to agree proposal for disclosure that meet overriding objective. Agreed proposal filed at court.
Dispensing with disclosure
Specific disclosure
Disclosure on issue by issue basis
Standard disclosure
party to disclose -
documents on which they rely
documents which
-adversely affect own case
-adversely affect another party case
-support another party case
‘Case’ - issues in dispute.
Control - limited to documents in parts control -
are or were in physical possession
have a right to possess
have a right to inspect
Duty to search -
reasonable and proportionate search for all documents that;
-adversely affect own case
-adversely affect another’s case
-support another party case
Reasonable?
Depends on;
number of docs
nature and complexity
ease and expense of retrieval
significance
Limitations;
may limit by;
not searching for documents that came into existence before particular date
specifying particulars place or place they search
limiting categories of documents.
Any one would need to be justified.
Electronic documents -
require parties to manage to minimise cost.
Parties must agree what to be disclosed (overriding objective).
E.g. keywords.
Done before directions given -
use electronic disclosure questionairre
CMC parties will discuss and court will give written directions
