Case and Costs Management

Question 1

CPR 1.4

Answer 1

court has duty to further the overriding objective by actively managing cases

• hands-on approach to deal with cases

Question 2

Timeline (allocation and CCMC)

Answer 2

1. defence
2. notice of proposed allocation

… at least 28 days later

3. Both parties file and serve (1) directions questionnaire D181, (2) proposed directions
4. allocation and notice of allocation sent o both parties
5. directions OR require CMC

Question 3

Precedent H (deadlines and main details)

Answer 3

costs budget 3.13(1)b

filed with directions questionnaire if value of claim is less than £50,000

if value of claim between £50,000 and £10mn - filed not later than 21 days before CCMC

Question 4

disclosure report (deadline and main detial)

Answer 4

Form N263 (CPR 31.5(3)-(8)

not less than 14 days before CCMC

Question 5

Precedent R (deadline and main detail)

Answer 5

3.13(2)

no later than 7 days before CCMC

Question 6

notice of proposed allocation (26.3)

Answer 6

tells parties what track provisionally allocated

• specify matters parties which parties must comply with by date specified in notice
• requires parties to file DQ and serve copies, proposed directions, costs budget, budget discussion report

Question 7

Directions Questionnarire

Answer 7

enables court to determine whcih track case should be allocated to

• compliance with pre-action protocol
• settlemnet considered?
• extent of disclosure?
• witness/experts
• estimated time for trial
• which court
• which track
• stay?

parties attempt to agree directions if case has been provisionally allocated to FT

Question 8

PRECEDENT H (costs budget)

Answer 8

a prescribed form for costs budget - it is an estimate of reasonable and proportionate costs which party intends to incur in proceedings

• contains statement of truth

filed with DQ if value less than £50,000 (3.13(1)a)

filed not later than 21 days before 1st CMC in any other case (3.13(1)b)

Question 9

PRECEDENT R (budget discussion report)

Answer 9

parties discuss budgets with each other

• shows what figures agreed to for each phase of litigation
• brief summary for grounds of dispute (3D PD)

Question 10

costs management (CPR)

Answer 10

3. 1

3. 1(2)m - sweep up

Question 11

cases exempt from costs management

Answer 11

3.12
more than £10mn
made on behalf of person under 18

Question 12

sanctions for non compliance

Answer 12

3.4 - strike out

otherwise:

• case management
• money

Question 13

IN TIME APPLICATION (deadline not passed)

Answer 13

3.1(2)a

court considers:
- reasons for requiring extension

• if delay in making application, why
• overriding objective
• hearing date affected?

not all or nothing - court can offer 7 e.g. if person applied for 14

Question 14

RELIEF FROM SANCTIONS (out of time application)

Answer 14

3.9, Denton

1. identify and assess the SERIOUSNESS and SIGNIFICANCE of the failure to comply with relevant rule/PD/court order
   (if hearing date affected -it is serious)
   - hearing dates affected?
   - disrupt conduct of proceedings?
   - if yes = serious and significant
   - how late? if other party can still comply with rules = ok
2. Consider WHY the default occured
   - debilitating illness = good
   - forget/pressure at work = not good
3. Evaluate ALL CIRCUMSTANCES OF THE CASE to ensure court deals with matter justly, with particular weight to CPR 3.9(a), (b)
   - so consider pass failures, promptness of application, how well innocent party has complied in the past

Question 15

pre action protocols + PD on pre-action conduct

Answer 15

sets out best practice + reasonable procedure to be followed

CPR requires parties to comply with these before issuing court proceedings

Question 16

issue and serve CF

Answer 16

serve within 4m of issue (7.5(1))

summarises C’s case - issued by court at request of C

Question 17

serve POC

Answer 17

(1) at same time as CF
(2) within 14 days of service of CF (7.4(1)b)

must be accompanied by notes for R and response pack

Question 18

file acknowledgement of service

Answer 18

within 14 clear days of deemed service of POC

• optional
• gives D more time to draft defence
• OR used if D wants to dispute jurisdiction

Question 19

file and serve defence

Answer 19

within 14 days of service of POC (or 28 days if AOS was filed) - CPR 15.4(1)b)

comprehensive response to POC 
D must state which allegations it:
(1) admits
(2) denies
(3) require proof (unable to admit or deny)

Question 20

allocation

Answer 20

track determines recoverability of costs and level of judge who hears case

court officer provisionally decides track and then serves on each party a notice of proposed allocation

after DQ - official allocation
if parties disagree - allocation hearing

Question 21

small claims track

Answer 21

part 27

claims with value of less than £10,000

Question 22

fast track

Answer 22

part 28

claims with value of up to £25,000

AND

• trial lasts no longer than 1 day
• there will only be 1 expert per party in a max of 2 expert fields

Question 23

multi track

Answer 23

part 29

all other cases
i.e. worth more than £25,000 and FT requirements not met

Question 24

CCMC (MT only)

Answer 24

hearing attended by both sides’ solicitor

PURPOSE

• discuss proposed directions
• judge provides directions order
• ensure real issues between parties are identified and understood
• approve costs budget, make CMO

COURT CONSIDERS

• settlement?
• steps taken?
• previous order/directions
• costs proportionate?

Question 25

directions

Answer 25

set deadlines and timetable ``` FT = auto directions MT = parties try to agree before CMC + court approves or imposes its own directions and notifies parties of this ``` USUAL DEADLINES INCL: - stay for ADR - disclosure/inspection - witnesses - experts - date/window for trial

Question 26

DISCLOSURE

Answer 26

Each party tells the other what documents they hold that are relevant to the case FT - exchange list relevant to case MT - 31.5 menu of disclosure options Parties must file + serve report 14 days before 1st CMC stating: - what docs exist - where docs located - how stored if eleectronic - estimated costs involved in giving standard disclosure - directions related to disclosure parties seek

Question 27

inspection of documents

Answer 27

allow other side to physically see an original document or providing them with a copy

Question 28

exchange of WS

Answer 28

WS - the way facts of a dispute are put before the court | Witnesses may need to refer to documents in their evidence so done after disclosure and inspection

Question 29

exchange of expert reports

Answer 29

court order required to adduce expert evidence at trial - usually necessary for experts to consider disclosure and WS before finalising their report - skilled and knowledgeable individual that is meant to advise court impartially on matters of his/her expertise

Question 30

what must parties file and exchange before CCMC

Answer 30

Precedent H (cost budget) - 21 days before CCMC Disclosure Report - 14 days before CCMC Precedent R (budget discussion report) - 7 days before CCMC agreed/proposed directions - 7 days before CCMC

Question 31

aim of cost management

Answer 31

ONE - transparency (parties+court = greater awareness and control over costs of litigation) TWO - make sure costs are reasonable and proportionate in accordance with overriding objective THREE - ensure costs of litigation are effectively managed and kept proportionate in the issues in dispute

Question 32

cases exempt from costs management

Answer 32

cases where: - commenced on or after 22 April 2014 - amount of money claimed is £10mn or more (on CF) OR - commenced after 6 April 2016 - made on behalf of a person under 18

Question 33

what is a CMO

Answer 33

records extent of agreed cost budget between parties OR records court's approval of costs budget after making appropriate revisions (to the extent parties do not agree)

Question 34

consequences of CMO

Answer 34

prima facie indication that costs will be recoverable because court approved so reasonable and proportionate if costs assessed on standard basis, court has regard to the party's last approved or agreed costs budget and only departs from it if 'good reason to do so'

Question 35

deciding on cMO

Answer 35

NOT a detailed assessment BUT considers whether budgeted costs fall within range of reasonable and proportionate costs - considers TOTAL figures for each phase - might have some regard to constituent elements

Question 36

PROPORTIONATE COST meaning

Answer 36

CPR 44.3(5) proportionate if reasonable relationship to: - sums in issue in proceedings - value of any non-monetary relief in issue of proceedings - complexity of litigation - additional work generated by the conduct of the paying party - wider factors in the proceedings

Question 37

REVISING BUDGET

Answer 37

3E PD 7.6 - can be revised upwards and downwards if SIGNIFICANT DEVELOPMENTS - send to other side to agree first, if not agree, submit amended costs budget to court for approval together with other side's objections - make application as soon as possible (e.g. extra witnesses due to disclosure) (if no amend + win - might not recover those costs) SIGNIFICANT DEVELOPMENT = not just for mere inaccuracies

Question 38

recoverability of costs incurred in preparing cost budget

Answer 38

lengthy and detailed job - costs of initially completing precedent J cannot exceed £1000 or 1% of approved costs budget - all other recoverable costs of budgeting and costs mangement cannot exceed 2% of costs budget

Question 39

cost capping orders

Answer 39

1 step further than CMO limits amount of future costs party can subsequently recover made if: - in interests of justice - substantial risk costs will be disproportionatly incurred - risk cannot be contained by case management directions or orders and detailed assessment of costs

Question 40

costs decided at the end

Answer 40

loser pays winner (44.2) - court order: standard or indemnity basis - court makes costs order that 1 party pays the other - parties negotiate on amount - if parties don't agree, court decide amount fo costs using 'detailed assesmsent' (costs judge does this) in detailed assessment - CMO is used + evaluate each individual item of the budget to reduce