Unit 6: Costs and Case management Flashcards
Where the court proposes to make an order of its own initiative, MUST it give any person likely to be affected an opportunity to make representations?
No. Under CPR 3.3(2)(a), the court MAY do so.
Where a court proposes to make an order of its own initiative and holds a hearing to decide whether to make the order, how many days’ notice must it give the affected parties?
At least 3 days.
Where a court makes an order of its own initiative, can a party affected by the order apply to have it set aside, varied or stayed?
Yes. The order must contain a statement of the right to make such an application.
How long does a party have to make an application to set aside, vary or stay a court order (made of their own initiative)?
Either:
- Within such period as is specified by the court; or
- Not more than 7 days after the date on which the order was served on the party.
Where the Claimant has a limited or severely impaired life expectation, the court will ordinarily disapply cost management. TRUE or FALSE.
TRUE. See PD 3E.1
Precedent H is for…
Costs budgeting purposes.
Where a party’s budgeted costs do not exceed £25,000 or the value of the claim is less than £50,000, the parties must…
..only use the first page of Precedent H.
Parties in most Part 7 multi-track claims with a value of less than £10 million must do what?
File and exchange costs budgets.
If parties are not required to file and exchange costs budgets, can the court order them to do so?
Yes, under discretion.
Parties should consider and discuss whether to apply for an order for the provision of costs budgets when? Early or late?
Early stage in litigation.
The Budget discussion report under rule 3.13(2) must set out what?
The figures which are not agreed for each phase;
The figures which are agreed for each phase;
A brief summary of the grounds of dispute
Recoverable costs of initially completing Precedent H shall not exceed the higher of:
All other recoverable costs of the budgeting and costs management process shall not exceed:
£1000 or 1% of total of incurred and budgeted costs.
2% of total incurred and budgeted costs.
TRUE or FALSE. Each party shall revise its budget in respect of future costs upwards or downwards, if significant developments in the litigation warrant such revisions.
TRUE.
In default of agreement over amended budgets, amended budgets shall be submitted to the court with a note of:
The changes made and reasons;
The objections of any other party.
Is a Litigant in Person required to prepare a budget?
No. They will nevertheless be provided with a copy of any other party’s.
CPR 3.12-18 (Costs Management) and PD3E apply to all Part 7 multi-track cases, except
(a) where the claim is commenced on or after 22/4/14 and the amount is £10m or more;
(b) Where the claim is commenced on or after 22/4/14 and for a monetary claim that is not fully quantified OR for a non-monetary claim and the claim forms says it is valued at £10m or more;
(c) In proceedings on or after 6/4/16, a claim is made by or on behalf of a minor;
(d) Where proceedings are the subject of fixed costs or scale costs;
(e) The court otherwise orders.
The purpose of costs management is that the court should:
Manage both thr steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the oerriding objective.
Unless the court otherwise orders, all parties except LIPs must filed and exchange budgets with their directions questionnaire UNLESS…
The claim form is over £50k.
In other cases, no later than 21 days before the first case management conference.
Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as…
Having filed a budget comprising only of the applicable court fees.
Where costs budgets filed and exchanged, the court will make a costs management order unless satisfied that:
the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective WITHOUT such an order being made.
By a costs management order, the court will:
Record the extent to which the budgeted costs are agreed between the parties;
In respect of the budgeted costs which are not agreed, record the court’s approval after making appropriate revisions;
Record the extent (if any) to which incurred costs are agreed.
Where practicable, cost management conferences should be conducted by:
Telephone or in writing.
When making any case management decision, the court will have regard to:
Any available budgets of the parties and will take into account the costs involved in each procedural step.
In any case where a costs management order has been made, when assessing costs on the standard basis the court will:
Have regard to the receiving party’s last approved or agreed budgeted costs for each phase of the proceedings;
Not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so;
Take into account any comments made pursuant to rule 3.15(4) or 3.17(3) and recorded on the face of the order.
Where a defendant files a defence, a court officer will:
Provisionally decide the track which appears to be most suitable for the claim; and
Servce on each party a notice of proposed allocation.
A notice of proposed allocation will
Specify any matter to be complied with by the date specified in the notice;
Require the parties to file a completed directiosn questionnaire and serve copies on all other parties;
State the address of the court or the court office to which the directins questionnaire must be returned;
Inform the parties how to obtain the directions questionnaire; and
If a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.
Parties can make a written request for a stay of proceedings when filing a directions questionnaire, to find ADR. True or false?
True.
The court will allocate the claim to a track when…
All parties have filed their directiosn questionnaaires; or
Giving directions pursuant to 26.3(8) (n/a for me i think)
UNLESS proceeding have been stayed. Then allocation will occur at the end of the stay.
The small claims track is the normal track for:
Personal injuries below £10k and value of damages is not more than £1000
Tenant and landlord claims:
- Requiring landlord to carry out repairs where the cost is not more than £1000 and any damages claim is not more than £1000.
The fast track is the normal track for any claim:
For whcih the small claim is not normal
WHich a value of not more than £25k, or £15k if issued before 6/4/2009.
Where the court considers the the trial won’t last any longer than a day
Where oral expert evidence is limited to one expert per party and expert evidence in two expert fields.
The multi-track is the normal track for any claim for whch:
Neither the small claims track or the fast track are normal.
When deciding the track for a claim, the matters to which the court shall have regard include: (9)
Financial value of claim
Nature of remedy sought
Likely complexity of facts, law or evidence
Number of parties
Value of counterclaim/Part 20 claim
Amount of oral evidence required
Importance of claim to persons who are not parties
Views expressed by parties
Circumstances of the parties
It is for the court to assess the financial value of a claim and so it will disregard:
Any amount not in dispute;
Any claim for interest;
Costs
Any contributory negligence
TRUE or FALSE. The court serves notice of allocation on every party once it has allocated a claim to the track.
True.
TRUE or FALSE. A court cannot re-allocate a claim to a different track.
FALSE. It can.
Rule 26.6 sets out
The scope of each track
Rule 26.7 sets out
General rules for allocation
Rule 26.8 sets out
Matters relevant for allocation to a track
Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover, it may make an order:
Directing the claimant to justify the amount.
When deciding whether an amount is in dispute, the court will apply the following principles:
Any amount for which D does not admit liability IS IN DISPUTE
Any sum in respect of an item forming part of the claim for which judgment has been entered IS NOT IN DISPUTE
Any specific sum claimed as a distinct item and which D admits he is liable to pay IS IN DISPUTE
Any sum offered by D which was accepted by C in satisfaction of any item IS NOT IN DISPUTE
Cases generally suitable for the small claims track include:
Consumer disputes
Accident claims
Disputes about ownership of goods
Disputes between landlord and tenant other than opposed claims
DISHONESTY CLAIMS not suitable!
When deciding whether to allocate to normal or fast track, the court will…
Allocate to fast track unless it believes that it cannot be dealt with justly on that track.
The court considers the length of a day to be:
5 hours.
Is the fact that a trial may last longer than one day conclusive of allocation to the multi-track?
No.
If a court decides not to direct standard disclosure, it may:
Direct that no disclosure takes place;
Specify the documents or the classes of documents which the parties must disclose.
A party who fails to keep to the timetable fixed by the courts is in real jeopardy of orders imposing severe sanctions upon them, including:
Payment of a sum of money
Striking out whole/part of statement of case
A short extension of time specifying the consequence of non-compliance
Where a trial can proceed as to some issues only, an order disallowing any costs in respect of any later trial of the remaining issues
A party must apply to the court if he wishes to vary the date which the court has fixed for: (5)
CMC
PTR
Return of pre-trial check list
Trial
Trial period
If no party files the completed pre-trial checklist by the date specified, the court will order:
That, unless a completed PTC is filed within 7 days from service of that order, the claim, defence and counterclaim will be struck out without further court order.
The hallmarks of the multi-track are:
The ability of the court to deal with cases of widely differing values and complexity
The flexibility given to the court in the way it will manage a case in a way appropriate to its particular needs.
To obtain court approval, the parties’ agreed directions must:
Set out a timetable by reference to calendar dates
Include a date period when it is proposed that the trial will take place
Include provisions about disclosure of documents
Include provision about both factual and expert evidence
During any CMC the court will:
Review party preparation steps, and compliance;
Decide directions to secure progress of claim under OO;
Ensure that agreements can be reached as far as possible
Likely topics to consider at a CMC:
Whether C”s claim is clear
Amendments to claim?
Necessary disclosure?
Expert evidence is reasonably required?
What Disclosure of factual evidence is necessary?
Further arrangements
Will it be just and save costs to order a split trial, or trial or preliminary issues?
TRUE or FALSE. A party can appeal to the court if dissatisfied re a direction given in a CMC.
TRUE.
Where a party failes to comply with a court direction, any other party may:
Apply for an order that he complies and/or order for sanctions.
Ordering postponement of trial is a last resort. TRUE or FALSE.
TRUE.
At what stage of proceeding are parties required to file and serve directions questionnaires?
Once the defendant has filed a defence - CPR 26.3(1)
What is the minimum number of days the parties will be given to comply with the specified matters, if the notice relates to the Small Claims Track?
At least 14 days after the date when it is deemed to be served on the party in question (CPR 26.3(b)(i))
What is the minimum number of days the parties will be given to comply with the specified matters, if the notice relates to the Fast Track?
At least 28 days after the date when it is deemed to be served on the party in question. CPR 26.3(6)(b)(ii)
What is the minimum number of days the parties will be given to comply with the specified matters, if the notice relates to the Multi-track?
At least 28 days after the date when it is deemed to be served on the party in question (CPR 26.3(6)(b)(ii))
Can parties vary, by agreement, the date for filing completed directions questionnaires?
No - CPR 26.3(6A)
What are the Court’s powers if a party fails to return a directions questionnaire in:
County Court money Claim;
High Court money claim;
Other cases
a) Serve a further notice requiring a further 7 days for compliance. Failure will lead to strike out - CPR 26.3 (7A)
b) Where proceedings have not commenced in or transferred to home court, Court will make the order it considers appropriate CPR 26.3(8)
c) It is suggested that the Court will make the order it deems appropriate (26.3.3)
Under CPR 29.5, for what actions must a party apply to court if they wish to vary CM directions?
CMC
Pre-trial review
Return of pre-trial checklist
Trial or trial period.
Anything which would affect any of the above dates.
What elements of a court-imposed multi-track time table can potentially be varied by party agreement?
Standard disclosure;
Exchange of WS that the parties intend to rely on;
Exchange of expert reports that court directs the parties may rely on
CAn you make applications at CMCs, for example to amend a statement of case?
Yes - it is advised to do so at this stage to avoid wasting time.
Can you apply for a sanction to be imposed against a party who fails to take a step in accordance with CM timetable?
Yes.
You should warn them first - 29PD 7.2
Where are claims generally allocated to if the trial is expected to last for more than one day?
Multi-track.
Not determinative.
When assessing the value of claim for allocation, is interest taken into account?
No - HICCCJ Order 1991 para 9
TRUE or FALSE. Judges have an unfettered discretion to re-allocate claims.
TRUE. They will only re-allocate if there is a good reason for doing so.
When should costs budgets be filed and exchanged?
With directions questionnaires.
UNLESS claim is more than £50,000, in which case it should be 21 days before first CMC.
Do LIPs need to file and exchange budgets?
No.
What happens if you fail to file a budget by the deadline?
You will be treated as having filed a budget compromising only the applicable court fees.
Where costs budgets have been filed and exchanged, the court will make a CMO unless…
…satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without such an order being made.
By a CMO, the court will…
Record the extent to which the budgets are agreed between the parties…
In respect of non-agreements, record the court’s approval after making revisions.
are approved budgets cost caps?
No. The court will expect parties to regualrly review them. They may need to agree or apply for suitable revisions.
Are Part 8 claims subject to costs management?
No, unless there is a specific direction.
What orders can the court make on its own initiative at a CMC?
Any case management powers in CPR 3.1, either on application or own initiative.
What sanctions can be imposed on a party who fails to comply with CM directions?
Payment of money into court
Striking out part of case
Unless orders
Costs sanctions.
Give examples of the things included in a directions questionnaire.
Which court
Witnesses
Experts
Length of trial
Dates of availability
What form is used to exchange costs budgets on the multi-track?
Precedent H.
What is Precedent R?
C’s claim and D’s offering with reasons (and vice versa)
When a court makes an order of their own initiative without give parties an opportunity to make representations, what can a party do if they are not satisfied?
Apply to have the order set aside, varied or stayed. The order must contain a statement of the right to make such an application.
