WS5 - Case Management Flashcards
Case and Costs Management - Introduction: What happens between completion of statements of case and trial and on hat basis?
- Main task is for parties to prepare and exchange evidence such as relevant documents, witness statements, expert reports, etc.
- Court directs when these various stages should take place by giving directions in accordance with overriding ojective and will actively manage the case to ensure it progresses in accordance with their direction.
Case and Costs Management - Introduction: What is court giving directions and management of case known as?
Case maangement
Case Management Powers and Striking Out: What are relevant CPR?
CPR 3.1-3.5
Case Management Powers and striking out - a) General case management powers of court: What are the powers corut has to manage cases and costs?
CPR 3.1(2):
* Extend/Shorten the time for compliance with any rule, PD or court order
* Adjourn hearings or bring tem forward
* Require party or legal rep to attend court
* Stay the whole or part of proceedings or judgement either generally or until specified event
* Order any party to file and serve costs budget
**Note - Also general provision allow corut to take any step or order for purupose of managing case/furthering overriding objective, so not limited to above. **
Case Management Powers and striking out - a) General case management powers of court: What can court do by own initiative?
- Make an order of own initiative CPR 3.3 which means without either party taking a step, the court could provide new directions or terminate case.
- If court does so, without a hearing or giving parties opportunutiy to make representation, court will include statement in order that parties have right to apply to set aside, stay or vary order within given period and if no period given, within seven days of the date on which order was served on party making applicaion.
Case Management Powers and striking out - b) Court power to strike out: What is definition of strike out?
- Deletion of written material from SoC so it cannot be relied on in proceedings by any party.
- Could be an entire statement so case effectively over and is designed to target cases that are inadquately drafted or an abuse of court process.
Case Management Powers and striking out - b) Court power to strike out: When will court exercise power to strike out?
CPR 3.4:
* On its own initiative or - If by own initiative, likely to happen around allocation/case maangement stage when court first engages with susbtance of the dispute.
* An application of a party - Any application should be made as soon as possible and preferably before allocation.
Note - Courts uses sparingly and often allow more suitable ways to deal such as amending statement of case
Case Management Powers and striking out - b) Court power to strike out: What is difference between strike out and summary judgement?
- Considerable ovelap between the two with applciations often been made for both.
- Strike out usually covers statement of cases so where case does not amount to legally recognisable claim/defence andd summary judgement deals with cases weak on their facts.
Case Management Powers and striking out - b) Court power to strike out: What is difference between strike out and default judgement?
- Default judgement is consequence of defendant failing to respond to claim and therfore procedural and does not consider merits of claim.
Case Management Powers and striking out - b) Court power to strike out - i) Grounds for Strike out: What are the grounds for strike out?
CPR 3.4(2):
(a) The statement fo cases discloses no reasonable ground for bringing or defending claim.
(b) The statement of case is an abuse of courts process or otherwise likely to bostruct the disposal of proceedings.
(c) There has been a failure to comply with a rule, practice direction or court order.
Look at each in turn below
Case Management Powers and striking out - b) Court power to strike out - i) Grounds for Strike out: What is position for no reasonable ground for bringing or defending claim?
- SoC may be struck out if discloses no claim or defence as a matter or law so important a party’s SoC is properly set out.
Case Management Powers and striking out - b) Court power to strike out - i) Grounds for Strike out: What is position for abuse of process/lkely to obstruct just disposal of proceedings??
- Abuse of process is misuse or procedure and not defined in CPR, but Lord Binham said it is “using that process for purpose significantly different from ordinary and proper use - AG v Barker
- Obstructing just dispoal includes claims that are vaxatious or obviously ill-founded - 3A PD 1.5
Note - Statement of case which discloses no reasonable ground may also be abuse of process, no divding line between (a) and (b).
Case Management Powers and striking out - b) Court power to strike out - i) Grounds for Strike out: What is position for failing to comply with rule, PD or court order?
- This is where the abuse is not in SoC, but the way claim or defence conducted.
- If a fair hearing is still possible despite failure, it is unlikely the court will strike out a SoC on this ground, instead the court more likely to make an order imposing a lesser sanction for non-compliance.
Case Management Powers and striking out - b) Court power to strike out - ii) Judgement:
See 2.2.4 and consider if needs adding
Allocation to Track - Introduction: What is the relevant CPR?
CPR 26
26 PD
Allocation to Track - Introduction: What are the different tracks?
- Small claims track
- Fast Track
- Intermediate track
- Multi-track
Allocation to Track - Introduction: What decides the track?
- Primarily, but not only on the value of the claim.
Note - When assessing the value, court will disregard interest, costs and any amount not in dispute as well as contrib.
Allocation to Track - a) Scope of each track: What is the scope for each?
Allocation to Track - a) Scope of each track: What is the position for small claim track PI claims?
Special rules applying to PI claims, Broadly, small claims track is normal track for PI claim if value is not more than £10,000 and in addition:
* If RTA before 31 May 2021, or claimant is child or protected party, or claimant rdiing motorcycle, the daages are not valued more than £1k
* In relation to other RTA claims, damages for PI not valued more than £5,000
* If any other PI claim (not RTA) damages for PI are value at not more than £1,500
So £10k relates to all heads of less but then the in addition points the PSLA must not be over these values.
Allocation to Track - b) Allocation Process: What is the process from the defence being filed to allocation?
**Note - As per the flowchart, if the court allocates provisionally to fast track, intermediate track or multi track, then they must also file proposed directions - See below where relevant such as for intermediate track and multi CMC’s. **
Allocation to Track - b) Allocation Process - i) Notice of Proposed Allocation: What happens after receipt of defence?
Court office will provisionally decide the track most suitable and then serve on each party notice of propsoed allocation - CPR 26.4(1)
Allocation to Track - b) Allocation Process - i) Notice of Proposed Allocation: What will notice of proposed allocation do?
Indicate track proposed for claim and also require parties to:
* (a) File and serve directions questionaire
* (b) On fast tack, itnermediate or multi-track, file proposed directions and
* (c) For claims under cost management regime, file and serve a cxosts budge and an agreed budget discussion report.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What is the purpose of direcitons questionaire?
- To provide information required by court to determien which track case is to be allocate to.
- This is provided by completing Form N180 for small claims and N181 for Fast, itnermediate and Multi which contains number of questions to help decide most appropiate track.
The next flashcards will breakdown each question from the N181
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re Pre-action protcol?
- Parties must confirm in DQ if they complied with pre-action protocols.
- If party fails to, it must explain why they have and may be sanctions as a result.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re settlement?
- This section allows parties to request court stay proceedings to try settle.
- If all parties request, claim will be stayed for a month - CPR 26.5(2).
- In all other cirucmstances such as if one party request but not all, court may stay if considers appropiate - CPR 26.5(3)
- Usually stayed for one month and if not settled and no extension request, case referred to judge for allocation and direcitons.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re disclosure?
- Asks parties to provide a lot of case management information as to future preparation of case for trial.
- You will see more details re disclosure in later workshop.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re witnesses?
- Each party will need to name witnesses it would like to call to trial and what they hope they will prove.
Note - No property in a witness, so nothing to prevent party from approaching witness seen listed in other party DQ to seek their views/assistance but of course, rules preventing pressure on them.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re expert evidence?
- If client wihes to rely on expert evidence, will need courts permission to do so.
- Must list their details in the DQ.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re trial?
- Parties also required to estimate time needed for trial, and useful to consult counsel at this stage for estimate.
- Estimate will be included in directions by judge and parties required to notify court if any change to estimate given.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re costs?
- In multi-track cases which fall witin authomatic costs management, parties will need to file costs budget with DQ.
- This is part of cost management regime and will be seen later in chapter.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What does form N181 request re directions?
- DQ requires parties to attempt to agree diextions and attach them, if case provianally allocated to fast, intermediate or multi-track.
* Must be filed with DQ if they ahve reached agreement or not - CPR 26.4(1)(b)(v)
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: What other matters do DQ ask about?
- Which court should claim be heard in
- Which track parties think case shoould be allocated to
- Whether parties have already made any interim applications and if they intend to in future
- Any other facts or documents parties wish judge to consider on allocation.
Allocation to Track - b) Allocation Process - ii) Directions Questionaire: When will the court then make their decision?
- Once all documents in notice of proposed allocation filed, including DQ, the court will allocate claim to a track and for cases in fast or itnermediate track, a complexity band.
- However, court may ocnsider it needs more information to allocate, therefore it may order party to provide furhter information or hold allocation hearing - CPR 26.7(4) and (5) but these hearings are rare.
- court will end send notice of allocation with copy of DQ’s to parties - CPR 26.9.
Allocation to Track - c) Criteria for Allocation: What else will court consider in addition to value?
As noted above under scope, value is the principal criterion, but not the only and court when deciding can decide not to allocate it to the normal track and the matters court will consider are:
* Financial Value of Claim
* Nature of the remedy sought
* Likely compelxity of of facts, law or evidence
* Number of parties or liekly parties
* Value of any counterclaim or other additional claim (court will not add together but will look at value of largest claim.
* Amount of oral evidence required.
* Imporance of claim to any person not parties
* Views expressed by parties
* Circumstances of parties.
Allocation to Track - c) Criteria for Allocation: What is the summary of approach taken by court?
- Identify the normal track - See Scope of each track above, then
- Decide whether there is good reason to allocate claim to track other than normal track, taking into consideration broader list of factors in CPR 26.13 above.
See P137 for example of allocation consideration
Small Claims Track - Introducition: What is the relevant CPR?
- CPR 27
- 27A PD
Small Claims Track - Introducition: What case will this court typically hear?
Wide variety ranging from:
* Consumer disputes
* Personal injruy claims depending on PSLA - See above
* Enforcement of parking charges disputes
* Holiday claims
Small Claims Track - Introducition: What are the featues of this court?
There are fewer formalties as certain CPR rule do not apply to small track and hearings are generally informal with parties representing themselves.
Small Claims Track - Introducition: What is often the position for costs?
Very limited which means court will rarely order one party to pay costs of toher, other than very limited fixed costs/court fees
Small Claims Track - Introducition: What do standard directions usually include?
- Parties to file and serve on every other party copies of document they intend to rely, no later than 14 days before main hearing
- Original documents be brought to hearing
- Notice of hearing date (at least 21 days usually) and time allowed for hearing - CPR 27.4(2)
- That court must be informed if, by agreement, claim settles.
The fast track - Introduction: What is the relevant CPR?
- CPR 28 - Fast Track and Intermediate Track
- 28 PD - Fast Track and Intermediate Track
The fast track - a) Directions: How will court usually give directions?
- On the baiss of the directions questionaire, but occasionally can hold a hearing - 28 PD 2
The fast track - a) Directions: Are standard directions available for fast track?
Standard directions exist (although they can be modified) and they include the following:
The fast track - a) Directions: What is standard period between giving directions and trial?
- Not more than 30 weeks - 28 PD 3.11
The fast track - b) Complexity Bands: What do these bands determine and what must parties do DQ?
- The level of fixed costs which can be recovered on conclusion of case.
- Parties required to state in DQ either agreed complexity band or if dispute, the compelxity considered appropiate by each party.
The fast track - b) Complexity Bands: What are the complexity bands?
The Intermediate Track - Introduction: What are the key sections of CPR?
- CPR 28 - Fast Track and Intermediate Track
- 28 PD - Fast Track and Intermediate Track
The Intermediate Track - Introduction: When was this track introduce?
- Case issued on or after 1 October 2023.
- For PI claims, it applies where cause of action arose or accrued on or after 1 October 2023.
The Intermediate Track - a) Key Features: What claims is this track for?
- Normal track for claims (where case is suitable neither the small claims or fast track) up to £100k
- Trial is likely to last for no longer than 3 days if managed proportionatly and oral evidence likely to be limited to two experts per party - CPR 26.9(7)
The Intermediate Track - a) Key Features: How are witness statement and summaries limited?
- Witness statements and summaries limited to 30 pages
- Expert reports to 20 pages (excluding necessary photographs, plans, etc - CPR 28.14(3)
The Intermediate Track - a) Key Features: Who mus the claim be brought by and against who?
- Single claimant against either one or two defendants or
- Two claimants against maximum of a single defendant
So, there is maximum of three parties.
The Intermediate Track - b) Directions: What can the court do?
- Set directions on allocation but may fix a case management confence (CMC) and pre-trial review - CPR 28.12.
The Intermediate Track - b) Directions: What must parties endeavour to agree before CMC?
- Agree appropiate directions and submit them to court seven days in advance of CMC (if one listed)
- Parties must also, unless court orders otherwise, file and serve disclosure report not less than 14 days before CMC (see more info below on multitrack re disclosure report)
Note -If court approves parties directions or issues its own directions, the CMC will then be vacated.
The Intermediate Track - b) Directions: What is different from fast track?
- No standard timings for directions as fast track, but
- Standard period between giving directions and trial will not be more than 30 weeks - 28 PD 3.11.
The Intermediate Track - b) Directions: What discretion do courts retain?
To allocate more complex calims under £100k to multi-track so complex cases will not be inappropaitely captured by extend fixed recoverable costs.
The Intermediate Track - c) Complexity Band: What will case be assigned on allocation to this track?
- As with fast track, it will also be assigned a complexit band - CPR 267.16 Table 2.
- Parties must therefore state in DQ the agreed band or if dispute, the one they believe appropiate.
The Multi-Track - Introduction: What are the main sections of the CPR?
CPR 29 - Multi- Track
29 PD - Multi Track
CPR 31.5 - Disclosure reports and electronic documents questionaire
The Multi-Track - Introduction: What claims will fall within the multi-track and what does this mean?
- Range of cases from disputes just over £100k to very large claims involving multi million pounds.
- Therfore, the way each case is dealy with in terms of case management and directions is flexible and differs depending on the case.
The Multi-Track - Introduction: What options usually follow notice of proposed allocation to the milti-track?
- (a) Court giving directions - This is likely in less complex cases/where parties agreed directions at time of filling directions questionaire; or
- (b) Covening a case management confence (CMC) - This is a hearing, by telephone or face to face to determine the future conduct of the case.
As a making sense note, from the reading, I believe:
* As per FC at 20, if the court allocates provisionally to fast track, intermediate track or multi track, then they must also file proposed directions
* As per above, if parties file proposed directions with DQ and they agree, then court likely give directions if lesss complex.
* However, if more complex, then will covene a case management confence - See below.
The Multi-Track - a) Purpose of CMC: What is intention of this hearing?
- More than just a hearing.
- Intended to ensure that the real issues are identified and understood by court and parties in attempt to narrow before trial and the court will test the parties on matters such as:
The Multi-Track - a) Purpose of CMC: What will court likely consider at CMC?
- If claim is clear
- If any statements of case need amending
- What disclosure is required, if any
- What expert evidence is required and how and when it should be obtained.
- What factual evidence e.g witness statements) should be provided
- If any further informationr equired and
- If it will be just and save corts to order split trial or trial of one ore more pleimenary issues - 29 PD 5.3
Note - We will focus on directions for use at CMC but its also possible for CMC later in case to assess how it is progressing and potentially give further direction.
The Multi-Track - b) Who should attend CMC: What is the position for legal representatives?
- Must be familiar with the case and have sufficient authority to deal with any issues likely to arise such as directions/issues - CPR 29.3(2)
- If such representative does not attend and CMC is psotponed, likely to result in wasted costs order (which is order payable by solicitor and not client)
- Court can also order client to attend.
The Multi-Track - c) Procedure: What is the prcoedure prior to the CMC and after?
See FC 53
The Multi-Track - c) Procedure - i) Directions: What express obligation are parties under?
- Express obligation to try agree directions before any CMC (For overriding objective, etc)
- This is reinforced by requirement for parties for agreed directions (or propsoed if agreement not reached) to be submtit o court at least 7 days before any CMC - 29.4.
The Multi-Track - c) Procedure - i) Directions: What did MOJ produce and how must parties use?
- Various sets of standard direction orders for different cases with menu of model paragraphs.
- When drafting case management directions, both parties and court must use these model and standard directions as starting point to then adapt for particular case - CPR 29.1.
The Multi-Track - c) Procedure - i) Directions: What if parties agreed all directions required?
- If court satisfied with appropiateness of directions, it may vacate the CMC.
- If they have not been able, CMC will be used for court to give directions and court will hear from represenaties before deciding what directions to make.
The Multi-Track - c) Procedure - ii) Requirement for Disclosure Report: What must both parties produce for CMC?
- In Multi-track, both parties must produe disclosure report ready for CMC - CPR 31.5(3)-(8) unless claim includes claim for PI
The Multi-Track - c) Procedure - ii) Requirement for Disclosure Report: When must it be served and containing what?
Not less than 14 days before the CMC, must serve report verfieid by statement of truth which:
* Briefly describes what documents exist, or may exist, that are or may be relevant to matters in issue in the case.
* Describe where and with whom those documents are or may be located
* Describes how any electronic documents are stores
* Estimates the broad range of costs involved in giving standard disclosure and cots of searching and disclosing any electornically stored documents and
* States which of the disclosure directions are to be sought.
The Multi-Track - c) Procedure - ii) Requirement for Disclosure Report: What forms are used?
- Disclosure Report - Form N263 which can be used to give above information
- If electronic docs to be disclosed, parties should consider using electronic documents questionaire - Form N264 and if used, needs to be filed with disclosure report, even where it has already been exchanged.
The Multi-Track - c) Procedure - iii) Case Summaries and applications: What else are parties required to consider for CMC?
- If a case summary will be useful (short document not more than 500 words by claimant and if possible agreed by other parties designed to assist court in dealing with the issues raised)
The Multi-Track - c) Procedure - iii) Case Summaries and applications: What should the case summary contain?
- Chronology of the claim
- Factual issues agreed and in dispute; and
- The nature of the evidence needed to decide them
The Multi-Track - c) Procedure - iii) Case Summaries and applications: What if party need to make an application to court?
Should be made as soon as possible that it become apparent it is eneded, and ideally made so it can be considered at any other hearing and this includes the CMC.
Costs Management - Introduction: What are the relevant sections of CPR?
CPR 3.12 - 3.18
3E PD
Costs Management - a) Scope of the costs management regime: When does the regime apply?
To all cases except the following cases - CPR 3.12:
* Small claims track, fast track and itnermediate track claims.
* Claims commenced on or after 22 April 2014 where amount of money as stated on claim form is £10million or more
* Claims Commecned on or after 22 April 2014 which are for a monetary claim which is not quantified or not fully quantified or is for a non=monetary claim and the claim form contains a statement it is valued at 10million or more.
* Claims commenced after 6 April 2016 made by or on behalf of a person under 18
* Claims that are subject to fixed or scale costs.
Costs Management - a) Scope of the costs management regime: What does courts discretion still allow?
Court can disapply the regime even if it would normally apply automatically or require compliance with it where it would not normally apply.
Costs Management - b) Costs management Procedure: What is the overview of what is required?
Costs Management - b) Costs management Procedure - i) Filing and Exchanging Costs Budget: When should the budget be filed?
For those less than £50k, with implentation if itnermediate track and FRC, there will be few cases were this pertitent, so anythign else is 21 days before first CMC
Costs Management - b) Costs management Procedure - i) Filing and Exchanging Costs Budget: What is the budget?
- An estimate of reasonable and proportionate costs (including disb) which a party intends to incur in proceedings.
- It relates to what a party might hope to recover from the other side as opposed toa mount a solicitor can charge a client.
Note - Therefore what is paid in the client retainer will often not bear relation to the recoverable costs so they often can charge more than what is in the budget for each stage of litigation as budget must ensure it is reasonable and proportionate which can sometimes confuse client as to why they cannot recover what they are paying.
Costs Management - b) Costs management Procedure - ii) Preparing the Costs Budget: What must budget include?
Statement of truth which must read - 22PD 2.3: “Budget is fair and accurate statement of incurred and estimate costs whicih it would be reasonable and proportionate for my client to incur in this litigation”
Costs Management - b) Costs management Procedure - ii) Preparing the Costs Budget: Are there forms available?
- Prescribed formf or costs budget - Precedent H
- If monetary value fo claim less than £50,000 or if part’s budgeted costs do not exceed £25,000 then parties must only use first page of Precedent H.
Costs Management - b) Costs management Procedure - ii) Preparing the Costs Budget: What costs does the budge consider?
- All about future costs.
- Incurred costs pre-budet are included on Precdent H, but they cannot be altered by the court and the rule that a party will only recover budgeted costs unless good reason (see later) does not apply to costs incurred prior to production of the costs budget - CPR 3.18(b).
Costs Management - b) Costs management Procedure - iii) Budget Discussion Repots: What must parties do once filed and exchanged costs budgets?
- Required to discuss budgets with each other in order to agree costs figures where possible.
- Parties must file then and exchange budget discussion reports (Precdent R) no later than seven days before first CMC- CPR 3.13(2)
Costs Management - b) Costs management Procedure - iii) Budget Discussion Repots: What do parties indicate with budget discussion report?
- Figures which are agreed and not agreed for each phase of litigaiton and
- A brief summary of grounds of dispute.
Costs Management - c) Costs Management Conference: What will the court consider?
- Budgets and budget discission reports are then considered by the court.
Costs Management - c) Costs Management Conference - i) Case management decisions What must court have regard to when making case management decisions?
- Available costs budgets and costs involved at each procedural step of litigation - CPR 3.16
- This applies at any stage, but even more important when court making decisions at first case managemnt conference.
Costs Management - c) Costs Management Conference - ii) Case management orders: What can court do at any time?
- Make a cost management order - CMO
Costs Management - c) Costs Management Conference - ii) Case management orders: What will the CMO do?
Court will consider if budgeted costs fall within range of reasonable and proportionate costs and then CMO will:
* Record extent to which costs budgets are agreed between parties and agreed figures cannot be changed by the court.
* Where figures not agreed, record the courts approval of a costs budget after making appropiate revisions.
Costs Management - c) Costs Management Conference - ii) Case management orders: What does it mean if court approves cost budget?
- That the bdugeted costs ae reaosnable and proportioante.
- If CMO is made, when assessing costs on standard basis, court will have regard to party’s last approved or agreed csts budget and will not depart unless satisfied good reason to do so - CPR 3.18(b)
Costs Management - c) Costs Management Conference - ii) Case management orders: What is a fundamental principle of the assessment process?
A party cannot recover a greater sum for costs from an opponent that it has in fact incurred.
This is true even if budget provides for greater sum to have been incurred and budge is essentially cap on what can be recovered.
Costs Management - c) Costs Management Conference - iii) Assessment if no CMO: What if no CMO made when it comes to assessement?
- Position is less strict.
- If diffeence of 20% of more between costs claimed by receiving party on detailed assessment and costs shown in budget filed, the party must provide reasons for difference with bill of costs and court may reduce recoverable sum if paying party reaosnably relied on budget.
Costs Management - c) Costs Management Conference - iv) Revising costs budgets What if signfiicant devlopments in litigation require budget to be revised?
Then:
* An amended budget should be submitted to the other parties for agreement if possible (using form prescribed specifically for variations - Precdent T) and
* The amended budget needs to be submit to court for consideration.
Note - This is for addressing significant devleopments and not for correcting mistakes in a budge in the first place which are generally not allowed.
Costs Management - c) Costs Management Conference - v) Failure to file a budget: What if a party fails to file?
Any part who fails to file when required to do so, will automatically be treated as having filed a costs budge comprising of only applicable court fees unless court otherwise orders - CPR 3.14.
If approved, this would then be starting point for what can be awarded at any future assessment.
Costs Management - d) Summary of Costs and Case maangement: See flowchart
Sanctions - Introduction: What are the main sections of CPR?
CPR 3.7 - 3.9
Sanctions - Introduction: What are sanctions and what can they relate to?
Measures which are bad for a party which aim to ensure comliance with court rules and orders and can relate to:
* Interest such as reducing the interest pyable to the claiamnt as a sanction imposed on the claimant.
* Costs - Ordering D to pay costs on indemnity rather than standard basis, as sanction imposed on D
* Striking out a statement of case
There is no defnitive list in the CPR of sanctions.
Sanctions - a) Courts power to impose: How can court impose?
By court order in which may either:
* Impose sanction immediate; or
* Make an unless order which is order that provides automatic sanction if non-compliance with order and it must specify date and time which act must be done - CPR 2.9.
Sanctions - b) Sanctions imposed by CPR: How else may sanctions come about?
Various provisions of CPR impsoe automatic sanctions for default such as:
* Failure to disclose expert report prevents them using it at trial - CPR 35.13
* Failure to file costs budget will be treated as filing budget only of applicable fees - CPR 3.14.
Sanctions - c) Time Limits: What is the general rule?
Time specified by a CPR or court order for party to ac may be varied by written agreement of parties, unless rule or PD provides otherwise or court orders otherwise. (e.g rules prevent parties agreeing variation of date of CMC and most other hearings)
Sanctions - c) Time Limits: What is an exception to general rule on time?
If rule, PD or court order:
* Requires party to do something within specified time and
* Specified the consequence for failure to comply
The time may not be extended by agreement between parties except that the parties can agree extension of time by prior written agreement (i.e before deadline is reached) for maximum of 28 days provided it does not put risk hearing date unless court orders otherwise.
Sanctions - c) Non-compliance with orders imposing: What if party fails to comply with rule, PD or court order imposing sanction?
Sanction takes effect unless parties applies and obtains relief from that sanction.
Relief from Sanctions - Intrdouction: What do the rules on granting relief from sanctions encourage?
Strict approach in which corut will consider all circumstaances of cases so as to enable it to deal justly with application - CPR 3.1(1).
Relief from Sanctions - Intrdouction: What do rules expressly require corut to consider?
The need:
* For litigation to be conducted efficiently and at proportionate costs and
* To enforce compliance with rules, PD’s and orders.
So, any application for relief must be supported by evidence.
Relief from Sanctions - a) Court’s approach to applications for relief: What is the leading cases and what did it set out?
Denton v TH White, Decadent Vapurs Ltd v Bevanand and Utilise TDS Limited v Davies set out the court should approach applications in three stages:
* (a) Idetnify and assess the seriousness and significance of the failure to comply with relevant rule, PD or order which engages CPR 3.9(1).
* (b) If the breach is serious or significant, consider why default occured.
* (c) Having considered the reason for the default, court should evaulate all circustances of cases to ensure it deals justly, but with particular weight to be given to requirments under CPR 3.9 (1)(a) that must be conducted efficently and at proportionate costs and 1(b) the court msut enforce compliance with the rules, practice directions and orders.
Relief from Sanctions - a) Court’s approach to applications for relief - i) Stage 1: What is the position for stage 1 application?
- If breach neither serious, nor significant, relief should be granted and court will spend litle time on stage 2/3
- Useful test if it is serious or significant is whether it has imperribled future hearing dates or otherwise disrupted litigation - If so, likely.
- However, at stage 1, do not consider the general conduct of the parties in the case, this should be considered at stage 3.
Relief from Sanctions - a) Court’s approach to applications for relief - ii) Stage 2: What is the position for stage 2 application?
Court failed to give reasons or examples for good and bad reasons for failure to comply so must apply each case to facts.
Relief from Sanctions - a) Court’s approach to applications for relief - iii) Stage 3: What is the position for stage 3 application?
Judges disagreed at this stage:
* Two judges states that CPR 3.9 factors above should be given importance and weight when considering circumstances of case.
* Other judge stated the weight to be attached to these two factors is a matter for court having regard to all circumstances.
So, consider the factors and all facts.
Relief from Sanctions - a) Court’s approach to applications for relief - iv) Case examples: Use case examples to understand how to apply
As seen below, it seems the key is having impact on the courts timetable and causing hearings to be vaccated due to the breach.
Relief from Sanctions - b) In-Time applications: What must you not confuse?
- Relief from sanctions apply when a deadline has passed and it is made after this.
- If a deadline is looming and party realises it wont comply, then makes an “in-time application” this should not be confused with relief from sactions.
E.G: Any application for extension provided it is filed before the deadline, even if court deals with it after expiry.
Relief from Sanctions - b) Default judgements and relief: What is an application for setting aside judgement treated as?
- Application for relief of sanctions when defenant is relying on discretioanry ground to set aside judgement in default - CPR 13.3.
- So, when considering if to set aside judgement in these circumstances, court should apply denton principles.
