CIVIL LITIGATION

Chapter 9 – Case management and allocation of cases

 r 1.4 imposes a duty on the court to manage cases actively.

 Part 3 of CPR 1998 gives the court a wide range of case management powers.

THE COURT’S POWERS

 R 3.1(2) - non-exclusive list of the court’s powers, which include instructions that the court can:
 (a) extend or shorten the time for compliance with any Rule, Practice Direction or court order (even if
application for extension is made after the time for compliance has expired);
 (b) adjourn or bring forward a hearing;
 (c) require a party or a party’s legal representative to attend the court;
 (d) hold a hearing and receive evidence by telephone, or other direct oral communication;
 (e) direct that part of any proceedings (ie counterclaim) dealt with as separate proceedings;
 (f ) stay the whole or part of any proceedings or judgment either generally or until a specified date or
event;
 (g) consolidate proceedings;
 (h) try two or more claims on the same occasion;
 (i) direct a separate trial of any issue;
 (j) decide the order in which issues are to be tried;
 (k) exclude an issue from consideration;
 (l) dismiss or give judgment on a claim after a decision on a preliminary issue;
 (ll) order any party to file and serve an estimate of costs;
 (m) take any other step or make any other order for the purpose of managing the case and furthering the
overriding objective.
 Court can make any order subject to conditions and can specify consequence of noncompliance.
 Such conditions - party to pay a sum of money into court pending the outcome of proceedings.
 r 3.1(5) - Order party to pay sum into court if party has failed to comply with a Rule, PD’s or pre-
action protocol - court must have regard to amount in dispute and costs incurred.
 r 3.1(6A) - money paid into court - security for any sum payable by that party to any other party.
 Court can hold a hearing before making an order on its own initiative, it must give 3 days’ notice.
 party may apply to set aside, vary or stay the order within seven days of service of the order.

STRIKING OUT A STATEMENT OF CASE AND OTHER SANCTIONS

 3.4(2) power to strike out all or part of a statement of case.

 The court can exercise this power if it appears to the court:
 (a) that the statement of case discloses no reasonable grounds for bringing or defending the
claim;
 (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct
the just disposal of the proceedings; or
 (c) that there has been a failure to comply with a rule, practice direction or court order.
 Inadequate statements of case ((a) above)
 PD 3A - examples of types of statement of case which may be struck out.
 Particulars of claim which set out no facts indicating what the claim is about
 Particulars of claim which contain a coherent set of facts, but do not disclose any legally
recognisable claim against the defendant.
  defence of bare denial, no coherent statement of facts, of if coherent facts, do not
amount in law to a defence to the claim - claimant may make an application to the court.
 If defendant did not comply with order, claimant would able to obtain judgment - defendant
can apply (r 3.6) for judgment to be set aside within 14 days after judgment has been served.
 Non-compliance with a Rule, Practice Direction or court order ((b) above)
 Striking out is only one of a number of sanctions that the court can apply.
 The starting point for decisions on sanctions for default is Biguzzi v Rank Leisure plc [1999].
 less drastic but equally effective ways of dealing with default.
 overriding objective -deal with cases justly and duty to ensure fairness, central consideration
in exercise of court’s discretion (Necati v Commissioner of Police for the Metropolis [2001].
 Arrow Nominees Inc v Blackledge [2000] - striking out a case purely on the basis of a breach
of the rules or an order of the court may infringe Article 6(1) of the ECHR unless the breach
itself meant that it may no longer be possible to have a fair trial.
 Where delay or non-compliance means no longer possible to have fair trial (Habib Bank Ltd v
Abbeypearl Ltd and Others [2001]), or where default so bad that amounts to abuse of court
(UCB Corporate Services Ltd v Halifax Ltd [1999]) strike out may be appropriate response.
 Sanctions may also be imposed by the court for non-payment of any court fees.
 If the claimant does not pay the fee, or make an application for exemption from or remission
of the fee within the specified time period, the claim will be struck out with costs.
 Sanctions other than striking out
 Costs
 Common sanction - party in default to pay the other party’s costs occasioned by the
delay on an indemnity basis.
 The court will make a summary assessment of those costs at the time of the hearing.
 If fault lies with legal representative, court may make a wasted costs order - improper,
unreasonable or negligent act or omission by legal representative (SCA 1981, s 51).
 court must allow legal representative reasonable opportunity to attend hearing and give
reasons why the order should not be granted.
 Interest
 If party at fault claimant, court may reduce amount of interest payable on his damages.
 If party in default defendant, interest payable on claimant’s damages at end increased.
 Limiting the issues
 The appropriate sanction may be to limit the issues that are allowed to proceed to trial -
AXA Insurance Co Ltd v Swire Fraser (2000).
 The unless order
 If party not taken step in proceedings according to court order, other party will serve the
overriding objective first to chase up the defaulting party promptly in correspondence.
 If that does not work, an application should be made to the court for an ‘unless order’.
 This is reflected in fast track and multi-track proceedings.
 PD 28 and 29 both provide in these circumstances that:
 Where a party has failed to comply with a direction given by the court any other party may apply
for an order to enforce compliance or for a sanction to be imposed or both of these.
 Party entitled to apply for an order must do without delay, but should first warn other party.
 It is a suspended sanction.
 If Party subject to unless order cannot make deadline should apply to court before to extend
RELIEF FROM SANCTIONS

 When sanction is payment of costs, party in default may obtain relief only by appealing against
the order for costs.
 When party must to do something within a specified time, and specifies the consequence of
failure to comply, time cannot be extended even if agreed between the parties - r 3.8(3).
 Relevant factors
 r 3.9(1) - Court will consider all the circumstances, including:
 (a) the interests of the administration of justice;
 (b) whether the application for relief has been made promptly;
 (c) whether the failure to comply was intentional (important factor Parker LJ stated in
Bournemouth & Boscombe Athletic FC Ltd v Lloyds Bank Plc [2003]).
 (d) whether there is a good explanation for the failure;
 (e) the extent to which the party in default has complied with other rules, practice directions, court
orders and any relevant pre-action protocol;
 (f ) whether the failure to comply was caused by the party or his legal representative (court does
not spend much time considering this Daryanani v Kumar & Co and Another [2000]);
 (g) whether the trial date or the likely trial date can still be met if relief is granted;
 (h) the effect which the failure to comply had on each party; and
 (i) the effect which the granting of relief would have on each party.
 Application for relief must be supported by evidence, usually a witness statement.
 Failure to give notice of CFA and/or AEI
 r 44.3(B)(1)(c) imposes the sanction of limiting the recoverability of that additional liability.
 For relief, court must apply relevant factors, but Floyd J stated in Supperstone v Hurst [2008]
- relief from sanctions should not be granted lightly, significant risk to be refused relief.
 Master Campbell in Kutsi v North Middlesex University Hospital NHS Trust [2008]relief
refused where notice had not been given at all due to solicitors unaware of need to give it.

ALLOCATION

 Part 26 CPR 1998 deals with preliminary stage of case management - cases allocated to a track.
 This stage of case management arises where a defence has been filed.
 Rule 26.2 provides for the automatic transfer of certain types of cases which are defended.
 If claim for specified amount of money and defendant individual then, court will transfer the
proceedings to the defendant’s home court when a defence is filed.
 When defendant admits the claim.
 When application to set aside a default judgment.
 Rule 26.2A provides automatic transfer of Designated Money Claims other those above.
 Court will serve Form N150 (application questionnaire).
 Small claims track - Form N149 is sent to the parties.
 Returned to court by date stipulated in notice, which must be 14 days after service of notice.
 The claimant must pay a fee when filing his allocation questionnaire.
 Completing the allocation questionnaire
 parties should consult one another and co-operate in completing the allocation
questionnaire, although this must not delay its filing.
 r 26.3(6A) - date for filing cannot be varied by agreement between the parties.
 Part A - settlement
  every effort should be made to settle the case and that the court will enquire as to what
steps have already been taken in that respect.
 Solicitor must confirm if he has explained to the client the need to try to settle, the
options available and the possibility of costs sanctions if the client refused to do so.
 parties must then indicate whether or not they want to attempt to settle at this stage.
 If a party answers yes, the next question asks the parties if they wish there to be a one-
month stay of proceedings so that they can attempt to settle the case.
 If all the parties request a stay, the court will usually order a stay of one month.
 Alternatively, court, of its own initiative, may order a stay if it considers it appropriate.
 If a stay is granted and the parties feel they require more time apply by letter to court.
 Parties can request the court to arrange a mediation appointment.
 Must give reason why mediation is inappropriate at this point.
 Part B - reason why the case needs to be heard at a particular court
 If claim issued in Central Office of the Royal Courts of Justice (RCJ) parties should state
whether he considers the claim should be managed and tried at the RCJ and, if so, why.
 As set out in para 2.6 of PD 29, claims suitable for trial in the RCJ include:
 (1) professional negligence claims,
 (2) Fatal Accident Act claims,
 (3) fraud or undue influence claims,
 (4) defamation claims,
 (5) claims for malicious prosecution or false imprisonment,
 (6) claims against the police,
 (7) contentious probate claims.
 If claim not within categories and value less than £50,000 transferred from RCJ to county
 If value of more than £50,000, it will usually be transferred to a District Registry.
 Part C – complied with PD on Pre-Action Conduct or pre-action protocol
 If not, explain the reasons why.
 Part D – Applications to court, witnesses, expert evidence and most suitable track
 Which interim applications made?
 Name the witnesses of fact they will be calling and what facts they are witnesses to.
 How they wish to use expert evidence at the trial
 criteria for allocation - value of the claim, if counterclaim or additional claim, the largest
of the claims determins the financial value of the claim. (PD 26, para 7.7).
 If multi-track requested, must state if reached agreement about disclosure of electronic
documents either using the Electronic Disclosure Questionnaire in PD 31B or otherwise.
 Part E – dates of unavailability of exerts and witnesses and estimate length of trial
 why experts unavailable on those dates (Matthews v Tarmac Bricks and Tiles Ltd [1999]).
 Part F - list of directions appropriate for management of the case
 indicate whether or not these are agreed.
 Fast track, parties should consider the directions outlined in PD 28 (see Appendix A(14)).
 multi-track the parties are referred to the Queen’s Bench Division Practice Form, PF52.
 Part G - estimate of costs incurred to date and overall costs of case
 In fast track and multi-track cases, a detailed estimate is required.
 Part H - allocation fee should be paid at this stage
  Part I - attached documents, any applications in the immediate future and any other
information
 Failure to file an allocation questionnaire
 Referred to judge for directions - will order all claims, defences and counterclaims struck out
unless allocation questionnaire filed within 7 days of service of order (PD 26, para 2.5(1)).
 If not all parties filed allocation questionnaire, court allocate on basis information available
 if court does not have enough information, it will list an allocation hearing.
 Court can hold allocation hearing on its own initiative only if it considers that it is necessary.
 Allocation hearing - parties must be given at least seven days’ notice of the hearing.
 Paragraph 6.6 PD 26 - sanctions when party in default regarding allocation procedure.
 Defaulting party must pay costs of other party who has attended the hearing, costs are
summarily assessed and to be paid immediately or stated period.
 if party does not pay costs within time stated, party’s statement of case will be struck out.
 By para 2.4 of PD 26, if interim court hearing takes place before claim is allocated to a track,
court can dispense with the need for the parties to file allocation questionnaires, treat the
hearing as an allocation hearing, make an order for allocation and give directions for case
management, or fix date for allocation questionnaires to be filed and give other directions.
 General principle in r 1.4(2)(i) – when case comes for hearing before the court, the court
should endeavour to carry out as much case management at that hearing as possible.
 Scrutinising your opponent’s allocation questionnaire
 Pay particular attention to Part C and check that the answers are accurate.
 Part D, how many witnesses opponent has and if any named; views on expert evidence.
 Review what is said about electronic documents.
 Part G and your opponent’s costs estimate.
 See if your opponent supplied any additional information at Part I.

ALLOCATION TO A TRACK

 Rule 26.8(1) sets out the factors to which the court must have regard, including:
 (a) the value, if any, of the claim;
 (b) the nature of the remedy sought;
 (c) the likely complexity of the facts, law or evidence;
 (d) the number of parties or likely parties;
 (e) the value of any counterclaim or additional claim and the complexity of any matters relating to it;
 (f ) the amount of oral evidence which may be required;
 (g) the importance of the claim to persons who are not parties to the proceedings;
 (h) the views expressed by the parties; and
 (i) the circumstances of the parties.
 r 26.8(2), when the court calculates the value of a money claim, it will disregard:
 (a) any amount not in dispute;
 (b) any claim for interest;
 (c) costs; and
 (d) any contributory negligence.
 Fast track not for £25,000, only if the trial is likely to last for no longer than one day.
 Oral expert evidence at trial limited to no more than one expert per party in relation to any
expert field and there will be expert evidence in no more than two expert fields.
 If want to tell court different track, both parties must agree (r 26.7(3)).
 When it has allocated a claim to a track, the court will serve notification on every party.
 If party dissatisfied with the allocation to a particular track, PD 26, para 11 provides that he may:
 (a) appeal, if the order was made at a hearing at which he was present or represented, or of
which he was given due notice; or
 (b) in any other case (eg, the case was allocated without an allocation hearing), apply to the
court to re-allocate the claim.
 Allocation to the small claims track (Part 27)
 Part 27 of CPR 1998 deals with allocation to the small claims track.
 Note that PD 26, para 8.1(1) provides that:
 (a) The small claims track is intended to provide a proportionate procedure by which
most straightforward claims with a financial value of not more than £5,000 can be
decided, without the need for substantial pre-hearing preparation and the formalities of
a traditional trial, and without incurring large legal costs.
 (b) Procedures for preparation of case and conduct of hearing are designed to make it
possible for a litigant to conduct his own case without legal representation if he wishes.
 (c) Cases generally suitable for the small claims track will include consumer disputes,
accident claims, disputes about the ownership of goods, and most disputes between a
landlord and tenant other than those for possession.
 (d) Case involving disputed allegation of dishonesty, not suitable for small claims track.
 Certain parts of the CPR 1998 do not apply to small claims, including Part 18 (Further
Information), Part 31 (Disclosure and Inspection), Part 32 (Evidence), most of Part 35
(Experts and Assessors) and Part 36 (Offers to Settle), unless the court orders otherwise.
 r 27.2(3), the court may of its own initiative order a party to provide further information.
 r 27.14, costs which can be recovered by successful party are extremely limited, therefore it
is usually uneconomic for solicitors to represent parties on the small claims track.
 Hearing will be informal and, if all parties agree, court can deal with claim without hearing.
 Where expert evidence is called, a limited amount may be recovered.
 The court does have power to award further costs if a party has behaved unreasonably.
 Allocation to the fast track (Part 28)
 court will allocate the case to this track without a hearing and order standard directions.
 Timetable of directions
 Para3.12 PD 28 sets out typical timetable for case preparation of case allocated to the
fast track:
 Disclosure - 4 weeks
 Exchange of witness statements - 10 weeks
 Exchange of experts’ reports - 14 weeks
 Court sends pre-trial checklist, listing questionnaires - 20 weeks
 Parties file pre-trial checklists, listing questionnaires - 22 weeks
 Trial - 30 weeks
 Parties may agree directions between themselves, must be approved by the court.
 Varying directions (r 28.4)
 Parties can vary directions by written agreement, application must be made to court if
wish to vary the dates for:
 (a) the return of the allocation questionnaire and the pre-trial checklist;
 (b) the trial; or
  (c) the trial period.
 parties cannot vary any matter if change will lead to alteration of any of those dates.
 PD 28 para 4.2(1) should take steps to do so as soon as possible.
 para 4.2(2) Assumption if application to vary directions not made within 14 days of
service of order then parties are content that directions were correct.
 A party dissatisfied with a direction or other order given by the court should either:
 (a) appeal, if the direction was given or the order was made at a hearing at which he
was present or represented, or of which he had due notice; or
 (b) in any other case, apply to the court to reconsider its decision.
 Variation by consent (PD 28, para 4.5)
 For some variations, the party must apply to the court for an order by consent.
 Parties must file draft of order sought and agreed statement of reasons why.
 The court may make an order in the agreed terms, or in other terms, without a hearing,
but it may well direct that a hearing is to occur.
 Failure to comply with directions (PD 28, para 5)
 other party may apply for an order enforcing compliance and/or for a sanction.
 The application should be made without delay.
 para 5.4(1) failure to comply with directions will not lead to postponement of trial date.
 Directions as to exchange of witness statements and exchange of expert reports
 Must be in the form of witness statements and experts’ reports.
 The exchange should normally be simultaneous.
 expert evidence direction gives permission for oral evidence, or written reports or both,
and will usually name the experts concerned or the fields of expertise.
 Court will not give permission for oral evidence unless it believes that it is necessary in
the interests of justice to do so.
 Fast track - expert evidence to be given by means of written reports and experts will not
be allowed to give oral evidence at the trial.
 The pre-trial checklist (PD 28, para 6)
 To check that directions are complied with so that the court can fix a date for the trial.
 Checklist (Form N170) sent to parties at least two weeks before has to be filed at court.
 Directions specify a date by which the parties should return the pre-trial checklist - not
later than eight weeks before the trial date or the start of the trial period.
 Parties encouraged to exchange copies of pre-trial checklist before filing them at court.
 If checklist not filed, claim, defence or counterclaim will be struck out unless a pre-trial
checklist is filed within seven days.
 If not all parties filed checklist, court will give normal listing directions or hold hearing.
 Listing directions (PD 28, para 7)
 The court will confirm or fix the date, length and place of the trial.
 The court will normally give the parties at least three weeks’ notice of the trial.
 The agreed directions should deal with, among other things:
 (a) evidence;
 (b) a trial timetable and time estimate;
 (c) preparation of a trial bundle (see below).
 The court may fix a listing hearing on three days’ notice if either:
 (a) a party has failed to file the pre-trial checklist; or
  (b) a party has filed an incomplete pre-trial checklist; or
 (c) a hearing is needed to decide what directions for trial are appropriate.
 Prior to the trial, parties should agree contents of trial bundle - all documents needed.
 Standard directions – bundle lodged with court by claimant not more than 7 days and
not less than 3 days before the start of the trial.
 Bundle must include case summary, not exceeding 250 words, outlining the matters still
in issue and referring to the relevant documents.
 Case summary should be agreed by the parties if possible.
 Allocation to the multi-track (Part 29)
 Directions
 When the matter is allocated to the multi-track, the court will either:
 (a) give directions for the management of the case and set a timetable for the steps
to be taken between the giving of directions and the trial; or
 (b) fix a case management conference, or a pre-trial review or both and give such
directions relating to the management of the case as it sees fit.
 Straightforward case, directions without case management conference para 4.10 PD 29:
 (1) to give directions for the filing and service of any further information required to clarify
either party’s case,
 (2) to direct standard disclosure between the parties,
 (3) to direct the disclosure of witness statements by way of simultaneous exchange,
 (4) to give directions for a single joint expert on any appropriate issue unless there is a good
reason not to do so,
 (5) … to direct disclosure of experts’ reports by way of simultaneous exchange on those issues
where a single joint expert is not directed,
 (6) if experts’ reports are not agreed, to direct a discussion between experts …
 (7) to list a case management conference to take place after the date for compliance with the
directions,
 (8) to specify a trial period; and
 (9) in such cases as the court thinks appropriate, the court may give directions requiring the
parties to consider ADR.
 Alternatively, the parties themselves may agree directions that deal with these matters.
 The case management conference
 At any case management conference, the court will (by para 5.1 to PD 29):
 (1) review steps which parties have taken in preparation, compliance with directions
 (2) decide and give directions about the steps which are to be taken to secure the
progress of the claim in accordance with the overriding objective, and
 (3) ensure that all agreements that can be reached between the parties about the
matters in issue and the conduct of the claim are made and recorded.
 Topics the court are likely to consider at the case management conference:
 (a) Whether each party has clearly stated its case
 (b) If amendments required to claim form, statement of case or other document.
 (c) What disclosure of documents, if any, is necessary.
 (d) What expert evidence is reasonably required, and how and when that evidence
should be obtained and disclosed and if oral or report only.
 PD 29, para 5.5(1) court will not at this stage give permission for party to rely on
expert evidence
  (e) What factual evidence should be disclosed.
 (f ) What arrangements should be made about the giving or clarification of further
information and the putting of questions to experts.
 (g)If just and save costs to order split trial or trial of one of more preliminary issues.
 In all cases, court will set a timetable for the steps it decides are necessary to be taken.
 Who should attend the case management conference?
 R29.3(2) - legal representative, familiar with case and with sufficient authority to deal
with any issues that are likely to arise must attend the case management conference.
 PD29, para 5.2(2) someone personally involved in conduct of case, and has authority and
information available to deal with any matter expected to be dealt with at the hearing.
 PD29, para 5.2(3) – if inadequacy of person or his instructions, leads to the adjournment
of a hearing, the court will expect to make a wasted costs order.
 Consequence - Baron v Lovell [1999] - sanction where the inadequacy of the person
attending or his instructions leads to the adjournment of the conference.
 PD 29 para 5.6, guidelines how parties should prepare for case management conference:
 (1) ensure all documents that court is likely to ask to see are brought to the hearing,
 (2) consider whether the parties should attend,
 (3) consider whether a case summary will be useful, and
 (4) consider orders to be made and give notice of them to the other parties.
 Case summary
 Formalities - PD 29, para 5.7(1):
 (a) should assist court to understand and deal with questions before it;
 (b) should set out a brief chronology of the claim, the issues of fact which are agreed
or in dispute and the evidence needed to decide them;
 (c) should not normally exceed 500 words in length; and
 (d) should be prepared by the claimant and agreed with the other parties if possible.
 Variation of directions (r 29.5)
 Party must apply to the court if he wishes to vary the date which the court has fixed for:
 (a) a case management conference;
 (b) a pre-trial review;
 (c) the return of a pre-trial checklist;
 (d) the trial; or
 (e) the trial period.
 Same assumption as fast track.
 If not notified of hearing or not present when it was made, he must apply for the court
to reconsider, and the court will give all parties three days’ notice of the hearing.
 Non-compliance with directions (PD 29, para 7)
 other party may apply for order for compliance and/or for the imposition of a sanction.
 Any delay in making the application will be taken into account by the court.
 court will not allow failure to comply with directions to lead to postponement of trial.
 The pre-trial checklist (PD 29, para 8)
 Date for filing -not later than 8 weeks before the trial date or the start of the trial period.
 checklist will have been served on the parties at least 14 days before that date.
 The parties are encouraged to exchange copies of the checklists before they file them.
  If none of the parties files a checklist, claim, defence and counterclaim will be struck out
unless any party files a checklist within 7 days of service of the order.
 If only some parties filed checklist, court will fix a listing hearing and give directions.
 On receipt of checklist, court may decide to hold a pretrial review at least 7 days’ notice.
 pre-trial review usually occur heavy case, particularly when trial last longer than 10 days.
 As soon as practicable after:
 (a) each party has filed a completed pre-trial checklist;
 (b) the court has held a listing hearing; or
 (c) the court has held a pre-trial review,
 the court will:
 (a) set a timetable for the trial, unless a timetable has already been fixed or the
court considers that it will be inappropriate to do so; and
 (b) fix the date for the trial or the week within which the trial is to begin.
 trial bundle of documents need be prepared for listing.

COSTS ESTIMATES

 Filed with questionnaires

 The Costs Practice Direction, at para 6.4(1), provides that when:
 (a) Party to a claim outside financial scope of small claims track or fast track files an
allocation questionnaire; or
 (b) Party to a claim dealt on fast track or multitrack files a pre-trial check list,
 that party must also file an estimate of costs and serve a copy of it on every other party.
 where party legally represented, lawyer must provide a copy of the estimate to his client.
 Under Costs Practice Direction, an ‘estimate of costs’ means an estimate of base costs
(including disbursements) already incurred; and an estimate of base costs (including
disbursements) to be incurred.
 Base costs are those which do not include any additional liability.
 A party who intends to recover an additional liability need not, and should not, reveal the
amount of that liability in the estimate but should have already given proper notice of the
funding arrangement.
 Format
 An estimate of base costs should be substantially in the form illustrated in Precedent H
in the Schedule of Costs Precedents annexed to the Practice Direction
 Practical point
 On an assessment of the costs of a party the court may have regard to any estimate
previously filed by that party, or by any other party in the same proceedings. Such an
estimate may be taken into account as a factor among others, when assessing the
reasonableness of any costs claimed: see the Costs Practice Direction, para 6.6, and
Leigh v Michelin Tyres plc [2003] EWCA Civ 1766.