Case management and costs Flashcards
(133 cards)
1
Q
What does the overview of costs element provide?
A
An overview of types of litigation costs and the factors the court will consider when making a costs order.
2
Q
Which Civil Procedure Rules (CPR) support the content of the overview of costs element?
A
- CPR 44.2-44.4 & 44.7 (in relation to costs generally)
- 44 PD 6.1-6.2 (in relation to the standard and indemnity bases)
3
Q
Why are costs an important consideration in litigation?
A
The expense of litigation is significant, and the court’s power to order a party to pay an opponent’s costs influences parties’ behavior.
4
Q
What are the different types of litigation costs?
A
- Solicitor-client costs
- Inter-party costs
- Non-party costs
5
Q
What are solicitor-client costs?
A
Costs payable by the client to the solicitor under the contract of retainer.
6
Q
What are inter-party costs?
A
The actual figure for costs awarded by the court which one party has to pay the other party.
7
Q
Under what circumstances can the court award non-party costs?
A
When a non-party is funding the litigation.
8
Q
What is the general rule regarding costs recovery?
A
Costs follow the event; the unsuccessful party pays the costs of the successful party (CPR 44.2(2)(a)).
9
Q
What are the two bases for assessing costs?
A
- Standard basis
- Indemnity basis
10
Q
What does the standard basis of assessment allow?
A
Costs which have been proportionately and reasonably incurred, and are proportionate and reasonable in amount.
11
Q
What does the indemnity basis of assessment allow?
A
Costs which have been reasonably incurred and are reasonable in amount.
12
Q
What is the time frame for complying with an order for costs?
A
A party must comply within 14 days of the judgment or order stating the amount of costs.
13
Q
What is Qualified One Way Costs Shifting (QOCS)?
A
A regime for the recovery of costs in claims for damages in respect of death and personal injury, restricting defendants’ ability to enforce a costs order against the claimant.
14
Q
What is the court’s discretion regarding costs?
A
The court has discretion over whether costs are payable, the amount, and when they are to be paid (CPR 44.2(1)).
15
Q
What factors does the court consider when making a costs order?
A
- The parties’ conduct
- Whether a party has succeeded on only some issues
- The complexity of the litigation
16
Q
What is the process for summary assessment of costs?
A
The court determines the amount payable by way of costs immediately after a hearing.
17
Q
What is the significance of the indemnity principle?
A
A party cannot recover a sum exceeding their liability to their own solicitor.
18
Q
What must the court specify when making a costs order?
A
The basis of assessment for calculating the amount of costs.
19
Q
What is the role of budgets in the costs assessment process?
A
Budgets are part of the court’s costs management process.
20
Q
What does it mean for costs to be proportionate?
A
Costs must bear a reasonable relationship to specified criteria like the sums in issue and the complexity of the litigation (CPR 44.3(5)).
21
Q
What is the expected recovery percentage for costs on the standard basis?
A
Typically, only 60% of costs may be recovered from the paying party.
22
Q
What is the expected recovery percentage for costs on the indemnity basis?
A
Typically, the receiving party may receive 70-80% of its legal costs from the paying party.
23
Q
What should the court do if there is uncertainty about the amount of costs?
A
Any doubt is resolved in favor of the paying party on the standard basis and in favor of the receiving party on the indemnity basis.
24
Q
What is the significance of the conduct of the parties in costs recovery?
A
The conduct can affect the court’s discretion in making costs orders.
25
What is the first step in the costs assessment process?
Determining the basis of assessment, whether standard or indemnity.
26
What happens if the court does not make an order as to costs?
Each party pays its own costs.
27
What is the purpose of the detailed assessment of costs?
To determine the exact amount of costs payable when parties cannot agree.
28
What is the time frame for submitting a blank N260 before a hearing?
24 hours before the time fixed for the hearing
## Footnote
This is specified in 44 PD 9.5(4)(b).
29
What is summary assessment used for?
In fast track cases at the end of the trial and at the end of a hearing of an interim application lasting no more than a day
## Footnote
Summary assessment is a procedure for determining the costs payable.
30
What is detailed assessment?
A more complex procedure for determining the amount of a party’s costs to be paid
## Footnote
It involves serving a notice of commencement and a copy of the bill of costs.
31
What are fixed costs?
Specific amounts recoverable by one party from another in certain circumstances in litigation
## Footnote
Assessed costs require the court's involvement for the decision on the amount.
32
What is the difference between summary assessment and detailed assessment?
Summary assessment is used in fast track proceedings and for hearings lasting no more than a day; detailed assessment is for most other cases
## Footnote
Detailed assessment requires a more comprehensive review of costs.
33
What are the common types of interim costs orders?
Costs in any event, costs in the case, costs reserved, costs thrown away, costs of and caused by, costs here and below, no order for costs
## Footnote
Each type serves a specific purpose in interim applications.
34
What does 'costs in any event' mean?
The party in whose favour this order is made is awarded its costs of the interim hearing regardless of the trial outcome
## Footnote
This ensures that the winning party recovers costs incurred during the interim hearing.
35
What does 'costs reserved' imply?
The decision about who pays the costs of the interim hearing is postponed to a later occasion
## Footnote
If no decision is made later, costs will typically be in the case.
36
What does the court's case management powers include?
Extending time for compliance, adjourning hearings, requiring attendance, staying proceedings, ordering filing of a costs budget
## Footnote
These powers aim to manage cases effectively.
37
What is the definition of 'strike out'?
The deletion of written material from a statement of case so that it cannot be relied on in proceedings
## Footnote
It can include striking out the entire statement of case.
38
What grounds can lead to a strike out?
* No reasonable ground for bringing or defending the claim
* Abuse of the court's process
* Failure to comply with a rule, practice direction or court order
## Footnote
Each ground addresses different issues with the statement of case.
39
What is the difference between strike out and summary judgment?
Strike out focuses on the statement of case; summary judgment is about the merits of the case based on facts
## Footnote
Both can be requested in alternative applications.
40
What are sanctions in the context of court rules?
Measures that are adverse to a party, aiming to ensure compliance with court rules and orders
## Footnote
Examples include reducing interest payable and imposing costs orders.
41
What is required for a party to obtain relief from sanctions?
A party must apply for relief and demonstrate that it is equitable to grant relief based on the circumstances
## Footnote
The specific process is outlined in CPR 3.7 to 3.9.
42
What happens if a statement of case is struck out?
The other party can generally obtain judgment with costs by filing a simple request at court
## Footnote
This is applicable if the strike out was due to non-compliance with a court order.
43
Fill in the blank: The court can make an order of its own initiative under _______.
CPR 3.3
## Footnote
This allows the court to provide new directions without a party's application.
44
What are sanctions in the context of court rules?
Measures which are bad for a party, aiming to ensure compliance with court rules and orders.
45
What are the types of sanctions that can be imposed?
* Interest reductions
* Costs orders
* Striking out a statement of case
* Other adverse measures
46
How can a court impose sanctions?
By a court order, either immediately or through an unless order.
47
What is an unless order?
An order that provides for an automatic sanction in the event of non-compliance, specifying a date and time for compliance.
48
What happens if a party fails to disclose an expert report?
They are prevented from using that report at trial (CPR 35.13).
49
What is the general rule regarding time limits and agreements between parties?
Time specified by CPR or court order may be varied by written agreement, unless otherwise stated by a rule or court order.
50
What is required for a party to extend a deadline for compliance?
An extension can be agreed in writing before the deadline, for a maximum of 28 days, without risking hearing dates.
51
What is the consequence of failing to comply with a sanction?
The sanction takes effect unless the party applies for and obtains relief from that sanction (CPR 3.8(1) and 3.9).
52
What does the court consider when granting relief from sanctions?
* Circumstances of the case
* Efficiency of litigation
* Compliance with rules and orders
53
What are the three stages in the Denton approach for relief from sanctions?
* Assess seriousness of the failure
* Consider reasons for the default
* Evaluate all circumstances of the case
54
What is the significance of a breach being serious or significant?
It determines whether relief from sanctions should be granted.
55
What must an application for relief from sanctions be supported by?
Evidence.
56
In the Denton case, what was the result regarding late service of witness statements?
Relief from sanctions was reversed as the breach was serious and significant.
57
What occurred in the Decadent Vapours case regarding court fees?
The Court of Appeal allowed an appeal for late payment of fees as the breach was deemed minor.
58
In the Utilise TDS Ltd case, what was the outcome of the late filing of a costs budget?
The Court of Appeal allowed the appeal as the delay was not serious or significant.
59
What distinguishes an in-time application from relief from sanctions?
An in-time application is made before a deadline, while relief from sanctions is requested after a deadline has passed.
60
What is treated as an application for relief from sanctions when setting aside default judgment?
An application relying on the discretionary ground under CPR 13.3.
61
What are the four separate tracks a case can be allocated to?
* Small claims track
* Fast track
* Intermediate track
* Multi-track
62
What is the normal track for cases valued at not more than £10,000?
Small claims track (CPR 27).
63
What is the trial duration limit for claims on the fast track?
No longer than one day (five hours).
64
What is the upper limit for claims on the intermediate track?
Up to £100,000.
65
What is the process for allocating a claim to a track?
* Defence is filed
* Notice of proposed allocation sent
* Parties file directions questionnaires
* Court allocates the claim to a track
66
What happens if parties request a stay during the allocation process?
The claim will be stayed for a month if all parties request it.
67
What must parties confirm regarding pre-action protocols in the directions questionnaire?
Whether they have complied with the pre-action protocols.
68
What is one potential consequence of failing to comply with pre-action protocols?
There may be sanctions as a result.
69
What can the court do if one party requests a stay?
The court can stay the claim if it considers it appropriate (CPR 26.5 (3)).
70
How long are cases usually stayed for?
Cases are usually stayed for one month at a time.
71
What happens if a case is not settled after the stay period?
The case will be referred to a judge for allocation and directions.
72
What is the purpose of the Disclosure Questionnaire (DQ)?
To provide case management information for the preparation of the case for trial, including the extent of disclosure.
73
Define disclosure in the context of legal proceedings.
Disclosure is the stage where parties exchange documents, typically through serving a list of documents.
74
What must each party do regarding witnesses before trial?
Each party must name the witnesses they wish to call and detail what they hope to prove with their testimony.
75
True or False: There is a rule preventing a party from approaching a witness listed in the other party's DQ.
False.
76
What is required if a client wishes to rely on expert evidence?
The court's permission is needed to rely on expert evidence.
77
What should parties estimate regarding the trial?
The time needed for the trial.
78
What must parties file with the DQ in multi-track cases?
A costs budget.
79
What additional information does the DQ request?
Information about the court for hearing, track allocation, complexity band, interim applications, and other relevant facts.
80
What is the first step in the allocation process?
Identify the normal track based on the claim's financial value.
81
List the principal criteria the court considers for allocating a claim.
* Financial value of the claim
* Nature of the remedy sought
* Likely complexity of facts/law/evidence
* Number of parties
* Value of any counterclaim
* Amount of oral evidence required
* Importance of the claim to non-parties
* Views expressed by the parties
* Circumstances of the parties.
82
What is the normal track for claims up to £100,000?
The intermediate track.
83
What are the key features of the small claims track?
* Very limited costs recovery
* Fewer formalities
* Abbreviated directions.
84
What is the standard direction regarding document exchange in the small claims track?
Parties must file and serve copies of documents they intend to rely upon no later than 14 days before the main hearing.
85
What is the maximum duration for fast track trials?
Fast track trials usually last no longer than one day.
86
What is the significance of complexity bands in the fast track?
They determine the level of fixed costs recoverable by the Claimant at the conclusion of the case.
87
What complexity band includes defended debt claims?
Complexity band 1.
88
What are the key features of the intermediate track introduced in October 2023?
* Normal track for claims suitable up to £100,000
* Trial likely lasts no longer than 3 days
* Limited to two experts per party.
* Witness statements limited to 30 pages and expert reports to 20 pages.
89
What determines the complexity band for cases on the intermediate track?
The level of complexity and the number of issues in dispute.
90
What defines complexity band 3?
Any more complex claim where more than one issue is in dispute, but unsuitable for assignment to complexity band 2, including noise-induced hearing loss and other employer's liability disease claims.
91
What characterizes complexity band 4?
Any claim which would normally be allocated to the intermediate track, but unsuitable for assignment to complexity bands 1 to 3, including personal injury claims with serious issues of fact or law.
92
What must parties state in the directions questionnaire?
Either the agreed complexity band or the complexity band considered appropriate by each party in case of a dispute.
93
What is the maximum time frame for the trial of an intermediate track case?
30 weeks of allocation.
94
What are the characteristics of the small claims track?
- Fewer formalities
- Very limited ability to recover costs from an opponent
- Much simplified directions
- Encourages parties to avoid legal representation
95
What is the purpose of a case management conference (CMC)?
To ensure that the real issues between the parties are identified and understood, and to narrow them before trial.
96
What should be included in a disclosure report in multi-track cases?
- Brief description of relevant documents
- Location of those documents
- Storage of electronic documents
- Estimated costs of standard disclosure
- Disclosure directions to be sought
97
What is the definition of a 'budget' according to CPR?
'An estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.'
98
When must budgets be filed for claims valued less than £50,000?
With the parties' directions questionnaires.
99
What is required if the parties cannot agree on directions before a CMC?
The CMC will be used for the court to give directions.
100
Which rule outlines that the costs management regime does not apply to small claims track, fast track, or intermediate track claims?
CPR 3.12.
101
What must parties do at least 14 days before the first CMC?
File and serve a disclosure report, unless the claim includes a personal injury claim.
102
What is the significance of a budget discussion report?
It records the extent to which the parties have agreed budgets and indicates areas of disagreement.
103
What happens if a legal representative does not attend a CMC?
It may result in a wasted costs order against the solicitor.
104
What must be included in a case summary for a CMC?
- A chronology of the claim
- Factual issues agreed and in dispute
- Nature of evidence needed to decide them
105
What can the court consider at a CMC?
- Clarity of the claim
- Amendments to statements of case
- Required disclosure
- Expert evidence needed
- Factual evidence needed
- Further information required
- Split trial or preliminary issues
106
What is a key aspect of the costs management regime?
Parties prepare budgets as estimates of future costs.
107
What can lead to discrepancies between budgets and client charges?
Differences in what a solicitor charges the client versus what is budgeted for recovery from the other side.
108
What is required in the statement of truth at the end of a budget?
'This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.'
109
What is the purpose of directions in multi-track cases?
To save time and money by requiring parties to agree on directions before any CMC.
110
What can happen if the parties have agreed all necessary directions?
The court may vacate the CMC.
111
What is the role of the Ministry of Justice in drafting case management directions?
They have published standard directions orders for different cases and model paragraphs for individual directions.
112
What happens at a costs management conference?
The court considers the parties' budgets and budget discussion reports.
113
Fill in the blank: The parties must file a _______ report at least 14 days before the first CMC, unless the claim includes a personal injury claim.
disclosure
114
True or False: The costs management regime applies to all cases without exception.
False
115
What is one characteristic of multi-track cases?
They cover a range of cases from simple disputes over £100,000 to very large claims involving millions of pounds.
116
What do the parties indicate in the budget discussion report?
The figures which are agreed and not agreed for each phase of the litigation and a brief summary of the grounds of dispute.
117
What is the purpose of completing the budget discussion report?
Enables the court to focus on the parts of the costs budget where there is disagreement between the parties.
118
What is a costs management conference?
A hearing where the court considers the parties' budgets and budget discussion reports.
119
What are the two main consequences of the court's consideration during a costs management conference?
* Case management decisions
* Costs management orders
120
What must the court consider when making case management decisions?
Any available costs budgets and the costs involved in each procedural step of the litigation.
121
What is a costs management order (CMO)?
An order made by the court regarding the approval of costs budgets.
122
What does a costs management order record?
* The extent to which the costs budgets are agreed between the parties
* Approval of a costs budget after making appropriate revisions if figures are not agreed.
123
What happens if a costs management order is made?
The court will regard a party's last approved or agreed costs budget when assessing costs on the standard basis.
124
True or False: A party can recover more costs than it has incurred, even if the budget allows for a greater sum.
False
125
What happens if no costs management order is made?
The position is less strict; if there is a difference of 20% or more between claimed costs and the budget, a statement of reasons must be provided.
126
What should a party do if significant developments in the litigation warrant a revision to a budget?
* Submit an amended budget to other parties for agreement
* Submit the amended budget to court for consideration.
127
What occurs if a party fails to file a costs budget when required?
They will be treated as having filed a costs budget comprising only the applicable court fees unless the court orders otherwise.
128
What is the consequence of failing to file a budget on time in multi-track cases?
Automatic and serious sanctions.
129
What is the timeline for filing and exchanging budgets in multi-track cases?
Not later than 21 days before the first CMC.
130
What is a budget?
An estimate of the reasonable and proportionate costs which a party intends to incur.
131
What must parties do before the CMC regarding budgets?
Discuss budgets and file a budget discussion report indicating the state of their agreement at least 7 days before the CMC.
132
What does the product of a costs and case management conference (CCMC) include?
Directions and a costs management order.
133
Fill in the blank: The court will not depart from approved or agreed budgets unless satisfied that there is _______.
good reason to do so.
