T8.Case Management

Question 1

What’s the financial ceiling for claims for Fast Track

Answer 1

CPR 26.9
-Not more then 25k

Question 2

How many expert evidence would indicate that fast track

Answer 2

1 expert per party or expert evidence was required in more than two expert fields.

Question 3

How many days would indicate fast track is the normal track?

Answer 3

Trial likley last for at least one day

Question 4

What are the factors court consider when allocating the appropriate track

Answer 4

CPR 26.13
- nature of remedy sought
-complexity of facts,law,evidence
-Val and complexity of any counterclaim/Part 20 claim
-Amount of oral evidence
-Wider imp of the claim
-View expressed by the parties
-Circumstnace of parties

Question 5

What is the financial val for Intermediate Track

Answer 5

Claim not more than 100k

Question 6

What are the determinative factor need to be aware in small claim track

Answer 6

-Val of claim up to 10k
-Rmbr for PI (up to 1.5k) only, if it goes above this number it goes to fast track

Question 7

What is financial ceiling for claims for multi track

Answer 7

Claim not more then 100k

Question 8

Whar are three steps when deciding how to allocate , ex: When there is indication claim to go to Intermeditate

Answer 8

First Step: Look at Value (CPR 26.9)
-Not more then 100k

Second Step: Complexity factor
-Oral expert evidence at trial is likely to be limited to two experts per party

Third Step: Look at length of trial
-Rmbr that for intermediate - its up to 3 day trail.

As to parties, the req for intermediate track is that there be :
1 C, 2 Def

For it to go Multi track- It must be in interest of justice to be allocated there.

Question 9

What are the costs consequence would follow the Def if claim allocated to Fast track

Answer 9

• Fast Track fixed costs would apply against the D if the C were to win

Question 10

Claims that go to Multi-Track

Answer 10

-More than 100k
- Claim is an asbestos lung disease or Mesothelioma claim
-Clinical cases ( unless the BOD and causation are admitted then it goes to the Intermediate Track)
- Abuse or neglect of children or vulnerable adults
-Claim which the court could order to be tried by jury
-Claim against police for reckless or intentional accident arising from negligent police driving

Question 11

After The D files defence files defence and counterclaim , what procedural step court will take (26.4-26.9-26.13) (Be aware of this)

Answer 11

26.4
-The court officer decide the track which appears to be most suitable to the claim

-Serve notice of proposed allocation on each party.

-Requires party to file completed Direction questionnaire and serve on the other party a copy of it.

-Parties return the DQ

-If case appear suitable for the track, the parties to file proposed directions by the date specified in the notice.

Question 12

What happen if party fails to file DQ

Answer 12

The non-compliant party is given oppurtunity to put things right, If action is not taken by that person then that party SOC is auto struck out

Question 13

What stage in litigation, court alloacte case to app track

Answer 13

CPR 26.4 -When D files a defence

Question 14

What stage court finally allocate the case to app track

Answer 14

Court allocate claim to track when all parties filled and completed DQ and serve notification to each party. (CPR 26.7(1)(a)

Question 15

Can a party apply for stay for settlement of the case during proceedings and how long is the stay?

Answer 15

-CPR 26.5
-A party may file the completed DQ make a written req for proceedings to be stayed while the parties try to settle the case by ADR or by other means.

-If all parties req a stay, then it will be stayed for one month and the court shall notify the parties accordingly.

-where it is stayed, the C must tell the court if a settlement is reached, if don’t court will give directions as to the management of case as it considers appropriate.

Question 16

IF a court lists for multitrack and court lists for the case for a Case Managment Conference (CMC)

Answer 16

CPR 29.4
Since this is multitrack case the parties shld endeavor to agree directions for the management of the proceedings prior to the CMC

Parties shld file with the court agreed directions or their respective proposals at least 7 days before the CMC

Question 17

What directions shld be sought for Multi Track

Answer 17

• A direction for standard disclosure or menu option disclosure by a specified date.
• A direction for disclosure of witness statements by a specified date.
• A direction for permission to appoint expert (s) and exchange of expert reports by a specified date.
• A direction that if the experts reports are not agreed for the experts to meet/discuss and file a statement with the court in relation to issues agreed/not agreed.
• A direction for the sending of pre-trial checklists by the court/filing of pre-trial checklists.
  The listing of a pre-trial review
• The listing of a trial date or the fixing of a trial period.

Question 18

IF the solicitor for ex not able to come for CMC can he rearrange the date fixed for the CMC

Answer 18

CPR 29.5
-Parties cant agree to vary the date of CMC. If he req the date to be changed he must apply to the court

CPR 29.3(2) make clear that person with conduct of case shld attend or certainly a representative familiar with the case.

If the inadequacy of the person attending leads to an adjournment, the court will be expected to make a wasted costs order.

Question 19

If the parties agree what proposed direction be, can the court be able to give directions without holding CMC

Answer 19

Yes. PD 29 para 4.5
In straightfoward case, not uncommon for court to give directions without having listed a CMC. It must be desireable or necessary to hold a CMC before the court will list one for hearing.

CPR 29.4
-Where court approves agreed directions the CMC will be vacated.

Question 20

At the time parties file QD, what other cost documents must be filed with the court

Answer 20

Where for Multi-Track

-Cost budget “must” be filed and exchanged. Unless the court order otherwise, the budget must be prescribed form of Precedent H.

The budget gives a detailed breakdown of the costs and disbursements alrdy incurred plus an est of future costs. (PD 3D 4a pg 185

Question 21

Do cost budget need to be verified by a statement of truth

Answer 21

Cost budget must be verified by a statement of truth signed by legal rep of that party

Question 22

If a C is not represented do they have to file a cost budget together withe DQ.

Answer 22

No. CPR 3.13, nevertheless they would recieve a copy of the cost budget of the other party, if the other party were represented.

Question 23

IF the C solicitor fails to file cost budget what are the cost consequence?

Answer 23

CPR 3.14. provides that unless the court otherwise order,

-A party who fails to file a cost budget despite being req to do so will be treated as having filed a budget comprising only of the applicable court fees and will therefore only be able to recover those–

They would have to make an application for relief from sanctions

Question 24

What will happen next if the C files the relevant doc within the period of time. What Order court may make (Cost Management Order)

Answer 24

The court will make a “Cost Management order” when the budget have been filled and exchanged unless it is satisfied that the litigation can be conducted justly and prop cost

Question 25

What is the effect of the CMO

Answer 25

It gives the court control over cost, parties by their cost budge have provided a detailed analysis of their likely costs.

The budget shld reflect an accurate statement of both incurred and estimated costs which would be considered both reasonable and proportionate for the purpose of the litigation.

Question 26

IF a C is claiming contractual intrest, but the contract did not contain interest provision,would interest still be payable?

Answer 26

Yes, intrest would still be claimed but it would have to be sought expressly. (CPR 16.4)

If there is no contractual provision, in the contract, the C could still claim interest pursuant s.69 CCA BUT THIS NEEDS TO BE PLEADED.

Rmbr that court also have discretion to reduce rate of interest or the period payable

Question 27

What will happen if one of the parties files for discontinuance, will the other party be able to recover cost.

Answer 27

GR (CPR 38.6)
- Unless the court orders otherwise, a C who discontinues is laible for the D costs incurred on or before the date on which the notice of discontinuance was served

Where there is discontinuance, and there is a counterclaim by D, that is a separate claim and will continue.

Question 28

Rmbr for Multi Track can parties agree to vary the date for pre-trial review

Answer 28

CPR 29.5
-No they cant need permission from court to do so.

Question 29

Rmbr for Multi track on the allocation of a claim, to the MT the court “May” or “must” hold a CMC regardless of whether this is necessary of desirable

Answer 29

The court hold a CMC, but if parties agree to directions, then court don’t need to hold CMC, and can allocate the claim accordingly

Question 30

IF a party does not agree with the directions given by the judge during a CMC what can the party do?

Answer 30

-The C shld make an application to the court to reconsider the decision however he would need to do so within “14 days of service of the order containing the directions”

Question 31

In a claim that is allocated to MT, the court don’t need to make a cost management order if satisfied that litigation can be done according to OO

Answer 31

Yes. The court only makes a CMO in multi-track case and the court does not have to make such an order if its satisfied that litigation can be conducted justly and at proportionate cost.

Question 32

Rmbr if a person is not represented and does not file a cost budge will that person suffer cost conseq (his conseq shld be limited to the applicable court fees in accordance to CPR)

Answer 32

No, rmbr that a person who not represented don’t need to file a cost budget, but nevertheless he is entitled to receive the other party copy of filed cost budget.

Question 33

If a party in addition to the agreed costs as set out in the budget also claim the cost of two interim application, and the other side rep say its not payable , since D rep fail to deal with it in cost management directions . What order court likely to make

Answer 33

Though the cost of the interim applcation not included within the agreed or approved budget, if the application were necessary and the cost could not reasonably have been included within the budge, then the costs will be treated “as additional to the approved budget” and allowed.

Rmbr that no separate application will have to be made for these posts to be dealt with, they will be allowed.

Question 34

IF a claim has been allocated to MT, and both parties filled DQ and parties wish to instruct their own expert. Both parties agreed proposed directions that court can dispense with listing the case for a CMC

If the judge agress CMC not req and give direction but instead of give permission, instruct single joint expert. Can the judge do this?

Answer 34

No he cant dont this, as it was not agreed proposed direction. The judge if he wishes to make such an order list the claim for CMC. This is because the court cant make a decision about expert evidence without hearing the parties

Normal rules is that court can overide parties wishes if don’t approve agreed directions, it can make order on its own initiative. The judge can make order on its own initiative, normally the court will go with directions agreed by party

But if judge dont, have to list the case for CMC in rider for him to do that, Judge cant make decision about expert evidence without hearing the parties.

Rmbr where party not happy appeal within 14 days of order given.

Question 35

The court when allocating a claim to a track which has specific val will disregard..

Answer 35

Allegation of contributory negligence.

Question 36

A C must obtain permission of the court if he wishes to disc all or part of his claim in relation to which:

Answer 36

The court has granted an Interim Injunction

A party has given undertaking to the court

Where there is more than one C and the other C have not given consent

Dont have to get permission of court to discountinue a claim against a Def who has brought
-AN ADDITIONAL CLAIM

Question 37

(3) Where the court proposes—
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.