7. Case Management

Question 1

What does the CPR / overall objective provide for vulnerable parties and witnesses?

Answer 1

Overriding objective seeks to ensure parties are on equal footing
- potentially, remote evidence via video conference
- questioning them through an intermediary

Question 2

4 Different Tracks

Answer 2

1. Small Claims track
2. Fast track
3. Intermediate track
4. multi-track

Question 3

Who makes the track allocation decisions?

Answer 3

The court officer

Question 4

When is the provisional track allocation decided?

Answer 4

When a defence is filed, court will (provisionally) determine which track is best suited

Question 5

Once the court has allocated the case to a track, how is this communicated to the parties? What next step must the parties take?

Answer 5

Court serves notice on parties (of proposed allocation) and requires them to file and serve a completed directions questionnaire by a specific date.

Question 6

Purpose of the Directions Questionnaire

Answer 6

• used to determine track (by court)
• assign case to a complexity band
• potentially determine directions for case management

Question 7

Failure to file a directions questionnaire in County Court (Money Claims Court)

Answer 7

If the claim is for money in the County Court, the court will serve a notice on the defaulting party requiring compliance within seven days. Failure to do so results in the party’s statement of case being automatically struck out.

Question 8

Failure to file directions questionnaire (Non-county court cases)

Answer 8

the court will make such order as it considers appropriate. This may include an order for directions, to strike out a statement of case or to list the matter for a case management conference.

Question 9

Which track: Case with value of 10 000 or less

Answer 9

Small Claims Track

Question 10

Which track: Claims valued between 10 000.01 and 25 000 inclusive

Answer 10

Fast track

Question 11

Which track: Less complex claims, valued at more than 25 000 but not more than 100 000

Answer 11

Intermediate Track

Question 12

Which track: The most complex claims, generally with a value of more than 100 000

Answer 12

Multi-track

Question 13

Relevant factors (aside from value) when determining track

Answer 13

• Remedy sought
• complexity of facts, law and evidence
• number of parties
• value of any counterclaim
• amount of oral evidence
• importance to non-parties
• views and circumstances of parties

Question 14

Factors NOT taken into account during track allocation:

Answer 14

• interest
• costs
• contributory negligence
• any sum not in dispute

Question 15

Small Claims track: Personal Injury value

Answer 15

For personal injury (specifically road traffic cases occurring after 31 May 2021) value of damages claimed for pain, suffering and loss of amenity must not exceed 5 000

Question 16

In which type of case might some of the CPR requirements not apply?

Answer 16

for small claims track cases (esp where individuals are representing themselves)

Question 17

Intermediate Track: Constraints on parties, duration, and experts

Answer 17

to qualify for the intermediate track, the claim must involve a maximum of three parties, no more than 2 experts giving oral evidence on each side and an anticipated trial of three days maximum

Question 18

Intermediate Track: will the court always hold a CMC?

Answer 18

Not necessarily, this is at the court’s discretion

Question 19

Intermediate Track: timeline between giving directions and having a trial

Answer 19

Should be no longer than 30 weeks

Question 20

Intermediate track: Must there always be a hearing to decide case directions?

Answer 20

No, not if the parties can agree directions without a hearing (court approves them without a hearing)

Question 21

What do complexity bands consider?

Answer 21

claims will be assigned to a complexity band which will determine the amount of fixed recoverable costs.

Question 22

How many complexity bands exist?

Answer 22

4 - these vary based on the track of the case

Question 23

What should be brought to / filed before the first Case Management Conference?

Answer 23

1. Case Summary prepared by the claimant (headed up as a statement of case)
   - Timeline
   - Issues of fact which are agreed
   - Issues in dispute
   - Evidence on which each party wants to rely should be added
2. Disclosure report prepared by both parties together on agreement
   - identify documents and locations
   - estimate of disclosure costs
   - proposals for disclosure
3. Directions Questionnaire
4. Budget breakdown and discussion report
   - incurred costs and future costs

Question 24

When is a costs management order made?

Answer 24

Usually at the first CMC

Question 25

What is the purpose of a costs management order?

Answer 25

Records extent to which budgeted costs of future phases of litigation are agreed between the parties - Any figures in dispute will be decided by the courts and court will give its approved number as it thinks appropriate

Question 26

What happens in 'pay as you go' litigation?

Answer 26

At the end of an interim hearing, the court orders one party to pay the other's costs

Question 27

Alternative to 'pay as you go' litigation?

Answer 27

1. Winner takes all (wait until end for costs order) 2. Neither party can claim costs

Question 28

If loser pays winner's costs on a standard basis: two test for determining what these costs are / how much?

Answer 28

1. Only costs which are reasonable and proportionate to incur are payable 2. if payable, only in an amount which is reasonable and proportionate - any benefit of the doubt here in favour of the party PAYING THE COSTS

Question 29

If court orders that one party pays the other's costs on the indemnity (penalty) basis: what are the two tests

Answer 29

1. Only costs which are reasonable to incur are payable 2. if payable, only in an amount which is reasonable - Any benefit of the doubt which the court has as to the reasonableness is given to the party GETTING THE COSTS

Question 30

Which cases are subject to cost management orders?

Answer 30

Multi-track cases (unless 10M+)

Question 31

Filing Requirements for Costs Budget

Answer 31

Once drafted, signed and dated, parties must file the cost budget with the directions questionnaire for claims less than 50k - All other claims, must be filed no later than 21 days before the first CMC

Question 32

What is a budget discussion period and when must it be completed

Answer 32

After filing the costs budget, no later than 7 days before the CMC, parties must meet to complete the budget discussion period - explains agreed points and points of dispute

Question 33

Can a costs budget be changed / amended?

Answer 33

Technically, but its is VERY difficult (once it has been approved by the court) - Require (1) agreement of other party or (2) to persuade court that there have been serious developments

Question 34

What happens if a party fails to file a costs budget on time?

Answer 34

The party will be treated as having filed a costs budget consisting ONLY of court fees - This is a sanction they can apply for relief from

Question 35

If there is no costs management order, can the receiving party claim ALL costs they have incurred?

Answer 35

If there is a difference of 20% or more between the costs claimed and costs on budget, receiving party must provide a statement of the reasons for the difference - court will decide if costs can be recovered

Question 36

If there is a costs management order will the court ever depart from this when it comes time to assess costs?

Answer 36

No, not so long as the costs are assessed on the standard (usual) basis

Question 37

If a court looks at the costs budget and believes them to be too high, what can they do?

Answer 37

Make a costs management order (if litigation cannot be conducted justly and at proportionate cost)

Question 38

When does the 'directions' period run for claims on the fast track?

Answer 38

The direction periods run from the date of allocation rather than the date the claimant’s directions questionnaire is filed.

Question 39

Fast Track: When are witness statements exchanged generally?

Answer 39

10 weeks from the date of allocation according to the typical timetable

Question 40

If either party has been sanctioned early on in the proceedings (ie. failing to engage with ADR) when should they apply for relief from this sanction?

Answer 40

They should apply for relief from the sanction ASAP and this will usually be heard at the CMC provided it has been submitted in good time and there is enough time in the CMC to deal with it

Question 41

When is the claim form deemed as served

Answer 41

on the second business day after the step required (here sending by first class post) has occurred

Question 42

If more time is required to file and serve the defence - what should the defendant's solicitor do?

Answer 42

the next step should be the defendant’s solicitor writing to request the claimant’s agreement to this. Before applying to the court, the parties should seek to resolve matters between themselves so as to comply with the overriding objective and to avoid the imposition of costs penalties. Only if that fails should an application be made

Question 43

County Court claim allocated provisionally to fast track and defendant fails to file directions questionnaire: What will happen?

Answer 43

the court will serve a notice on the defendant requesting the filing of its Directions Questionnaire within seven days, failing which the defendant’s defence will be automatically struck out.

Question 44

Multi-track: which timetables can be varied with agreement with the parties and which cannot?

Answer 44

CAN - timetable for exchange of witness statements UNLESS this means changing CMC, pre-trial review, return of pre-trial checklist or trial / trial period, because these cannot be varied by agreement

Question 45

If a party does not comply with a court's unless order, what will happen?

Answer 45

1. Claim will be automatically struck out if unless order states this, or claimant may have to pay 2. UNLESS the party applies for relief from sanction

Question 46

The defendant fails to comply with standard directions repeatedly. The court issues an order stating that their defence will be struck out or dismissed unless they submit a witness statement in the next 7 days. 7 days elapses and nothing is filed. What should the claimant do?

Answer 46

Nothing - they do not need to apply as the claim will be struck out automatically