Unit 4 Case Management and Disclosure of Documents Flashcards
Case Management
Overriding objective:
To enable the court to deal with cases justly and at proportionate cost.
Imposes a positive duty upon the parties and the court will expect a high level of co- operation.
The court’s active role includes:
- fixing timetabes
- encouraging parties to cooperate etc.
Vulnerable parties and witnesses :
The overriding objective includes ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence.
Allocation to a track - Provisional allocation and directions questionnaire
Initially, decision as to track allocation is made by a court officer.
When a defence is filed, the court will provisionally decide which track appears the most appropriate for the claim.
Then require them to file and serve a completed directions questionnaire.
Failure to file directions questionnaire:
- For money in county court, require compliance within 7 days if not statement of case automatically struck out.
- All other cases, court can order an order for directions, to strike out a statement of case or to list the matter for a case management conference.
Allocation to a track - which track?
- Small claims
10k or less
New road traffic acts must not exceed 5k.
Personal injury 1-5k.
Informal. If parties agree, decision based on docs without oral hearing.
Designed to enable litigants in person to represent themselves. - Fast track
10,000.01- 25k
Directions are standard.
The trial is expected to last no longer than a day.
Expert evidence is more limited. - Intermediate track
More than 25k - 100k
Less complex than multi track cases.
Trial not more than 3 days, limited to 2 oral experts.
Go to multi track if mesothelioma, jury claims, claims in relation to children and vulnerable adults. - Multi track
More than 25k.
Can have tailored directions.
Usually court set timetable.
Case management conference (CMC)
Allocation to a track - Multi- track - Case management conference (CMC) and case summary
- CMC
a) review the steps the parties have already taken to prepare the case;
(b) check their compliance with any directions the court has made; and
(c) consider and give directions about future steps to ensure the claim proceeds in accordance with the overriding objective.
If a party has a legal representative, an individual who is familiar with the case must attend the CMC.
- Case summary
Purpose is to describe what matters are still in dispute and which are agreed.
Allocation to a track - Multi- track - Directions
- Costs of CMC
- Consider ADR
- Timetable to trial
- Disclosure of docs and inspection
- Expert evidence
Single joint expert (unless a good reason not to)
Simultaneous exchange of separate expert evidence - Simultaneous of exchange of factual evidence (witnesses)
- Is further info need to clarify a party’s case
Parties are precluded from changing any of the following without making an application to the court:
(a) any case management conference;
(b) a pre- trial review;
(c) the return of a pre- trial checklist; or
(d) the trial or the trial period.
Allocation to a track - Multi- track - Directions - failure to comply
If not kept precisely to directions timetable, normally fine if parties co-operate to meet certain key dates.
If a step is missed:
* any other party may apply for an order enforcing compliance and/ or for a sanction to be imposed.
* the trial date is sacrosanct and the court will not allow failure to comply with directions to lead to the postponement of the trial, unless the circumstances are exceptional.
Allocation to a track - Multi- track - Costs management - costs budget
Costs are managed by the parties being required to provide a costs budget.
Must be filed:
∘ with the directions questionnaire for claims of less than £50,000; and
∘ no later than 21 days before the first CMC for all other claims.
Parties must then complete a budget discussion report no later than seven days before the first CMC.
Hard to amend - need agreement of parties, or courts if significant developments e.g. need additional experts report.
If fail to file costs budget on time, will be treated as if their budget consisted only of court fees.
Allocation to a track - Multi- track - Costs management - Costs management order
Imposed unless the judge is satisfied that the litigation can be conducted justly and at proportionate cost.
Court will:
a) record agreed costs (incurred or budgeted); and
b) in respect of the budgeted costs that are not agreed, record the court’s approval after making appropriate revisions.
Court will not depart from agreed budget unless good reason.
If no order?
Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference. It is then a matter for the court to decide whether the additional amounts can be recovered.
Court sanctions - Striking out a statement of case
Striking out a party’s case so their claim or defence comes to an immediate halt.
2 common scenarios:
* the statement of case discloses no reasonable grounds for bringing or defending the claim; and
* there has been a failure to comply with a rule, practice direction or court order.
Court sanctions - other sanctions
- Costs: a common sanction is to require the party in default to pay the other party’s additional costs on an indemnity (penalty) basis.
- Interest: orders could be made increasing or reducing – depending upon which party is at fault – the interest payable on any damages.
- The unless order: if a party has not taken a step in the proceedings in accordance with a court order, an application may be made to the court for an ‘unless’ order. (unless order complied with by specific date - case struck off)
Relief from sanctions
Costs sanction take effect unless appeal.
Other sanctions take effect unless court grants relief. Court considers all circumstances.
Denton case - party must apply promptly with evidence:
(a) Identify and assess the seriousness or significance of the relevant failure. If a breach was not serious or significant, relief is usually granted.
(b) Consider why the failure or default occurred
(c) Evaluate all the circumstances of the case so as to enable the court to deal justly with the application.
Disclosure of documents
A party discloses a document by stating that it exists or has existed.
Done by prepping a list.
Doc definition = info that is recorded. Wide.
Disclosure on each track
- Small claims track
The usual direction is that each party shall, at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at that hearing. - Fast track
An order for standard disclosure will invariably be made. - Multi- track
Although standard disclosure is usually ordered, the court may tailor the order to the requirements of the particular case.
Standard disclosure
Requires a party to disclose:
(a) the documents on which they rely; and
(b) the documents which:
(i) adversely affect their own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case.
Documents that:
(a) either are or were in their physical possession;
(b) they have a right to possess; or
(c) they have a right to inspect.
Disclosure - The duty to search
A party is required to make a reasonable and proportionate search for all documents that:
(a) adversely affect their own case;
(b) adversely affect another party’s case; or
(c) support another party’s case.
What is reasonable depends on number of docs, significance of doc etc.
Duty to search is not exhaustive and a party may limit the extent of their search. Needs to be justified.
Electronic docs - manage docs to and use tech to do so to minimise cost. Parties must discuss and ideally agree - keywords to be used, how data will be exchanged etc.
