WS5: Case and Costs Management

Question 1

What are solicitor client costs? Are they recoverable?

Answer 1

Costs payable by a client under a contract of retainer
should be recoverable but likely that there will always be a shortfall

Question 2

In what circumstances might a non-party cost be ordered?

Answer 2

Common when litigation is funded; tends to be exceptional and the court will consider ‘is it just to make the order’?

Question 3

What is the general rule on costs?

Answer 3

Loser will pay the costs of the winner

But - the court has complete discretion

Question 4

What are the two different costs bases?

Answer 4

Standard basis - proportionate and reasonable. Any doubt is resolved in favour of the paying party

Indemnity basis; reasonable in incurring and amount. Any doubt is resolved in favour of the receiving party. [No need to be proportionate here]

Question 5

What proportion of costs might be received on either basis?

Answer 5

Standard - 60%

Indemnity - 70-80%

Question 6

When will indemnity costs be awarded?

Answer 6

Tend to be awarded where there is some element of a party’s conduct of a case which deserves some mark of disapproval

Question 7

When will a cost be proportionate?

Answer 7

When it bears a relationship to the following

• Sums in issue in proceedings
• Value of any non-monetary relief
• Complexity of litigation
• Any additional work generated by conduct of paying party
• Any wider factors involved in proceedings e.g. reputation

Question 8

How long does a party usually have to pay once judgment has been made?

Answer 8

14 days of date of judgment, or if decided later, from the date of certificate stating the amount

Question 9

For which types of cases is the costs management regime most important?

Answer 9

Multi track

Question 10

What is case management?

Answer 10

Giving directions and management of a case

Question 11

What types of cases are subject to fixed costs?

Answer 11

Small claims, intermediate and fast track claims

On the fast and intermediate track there are four complexity bands - each band determines the amount of fixed costs recoverable

Question 12

When are costs assessed?

Answer 12

When the parties are unable to agree the amount of costs one should pay the other

Question 13

What is a summary assessment of costs?

Answer 13

Parties prepare statements on form N260, and file and serve them on each party not less than 24 hours before hearing

Court will review the forms, hear short submission and decide what should be paid

Question 14

What should be used: summary assessment or detailed assessment of costs?

Answer 14

Summary - particularly in fast track cases and at the end of a hearing of an interim application / matter which has not lasted more than a day

Question 15

What is the detailed assessment of costs? How does it work?

Answer 15

• Receiving party serves a notice of commencement and a copy of its bill of costs on paying party
• Points of dispute in relation to any item in the bill of costs should then be served on receiving party by the paying party within 21 days of service of the notice of commencement
• No agreement  the receiving party should then file a request for detailed assessment, at a hearing where costs officer will determine the sum to paid

Question 16

Interim costs order: what does ‘costs in any event’ mean?

Answer 16

Party in favour is awarded costs of interim hearing from other party, regardless of who eventually wins at trial

Question 17

Interim costs order: what does ‘costs in the case’ mean?

Answer 17

Party who gets costs in trial will recover the costs of the interim hearing from the other party

Question 18

Interim costs order: what does ‘C/Ds costs in the case’ mean?

Answer 18

If C is successful and receives an order that it should be entitled to its costs at the end of trial can include the costs of interim application.
* If D awarded costs at trial, C does not have to pay interim costs

If D is awarded costs in the case, same principles apply but in reverse

Question 19

Interim costs order: what does ‘costs thrown away’ mean?

Answer 19

If a judgment or order is set aside in, costs are made in favour of the party whose favour the order is made in

Can include the hearing of the original order, and the one in which the order was set aside

Question 20

Interim costs order: what does ‘costs of and caused by’ mean?

Answer 20

Costs resulting from something a party has done e.g. amending its particulars of claim

Question 21

Interim costs order: what does ‘costs here and below’ mean?

Answer 21

Party is entitled to costs in that court, but also to any proceedings the parties in lower courts.

Question 22

What is the court’s general case management power?

Answer 22

Court can take any step or make any order for the purpose of managing the case and furthering the overriding objective

Question 23

Can a court terminate a case of its own initiative?

Answer 23

Yes - must include a statement saying that parties have a right to apply to set aside / stay / vary an order within a given period

If no period given - application should be made in 7 days

Question 24

What does the court’s power to strike out entail?

Answer 24

• Deletion of written material from a statement of case so that it cannot be relied on in the proceedings by any party
• Can include deletion of a whole statement of case  case effectively over
• Designed for inadequate drafting / abuse of court process

Question 25

What are the three grounds for strike out?

Answer 25

Statement of case shows no reasonable ground for bringing, or defending a claim Statement of case is an abuse of the court's process, or otherwise likely to obstruct the just disposal of proceedings There has been a failure to comply with a rule / PD / court order - late service, not attending court, being unprepared for court hearings.

Question 26

What can the other party do if the court makes an order including a term that a statement of case will be struck out if a party does not comply with the order?

Answer 26

Other party can obtain judgment by filing a very simple request at court once the order is not complied with

Question 27

What is a sanction?

Answer 27

A measure restricting a party, aiming that it complied with court rules and court orders.

Question 28

What are common sanctions options?

Answer 28

Interest Strike out Costs

Question 29

In what three formats can a court impose sanctions?

Answer 29

Immediately 'Unless' order; conditional sanctions. CPR contains some automatic sanctions; e.g. failure to disclose an expert report leads to immediate sanction of being unable to use the report

Question 30

If a sanction is pending (e.g. via a failure to do something included in a rule / practice direction), can parties extend the deadline?

Answer 30

They can agree an extension before the deadline is reached, for a maximum of 28 days, provided that this does not put any hearing date at risk - subject to any order of the court

Question 31

When the court is considering relief from sanctions, what must it consider?

Answer 31

Need for litigation to be conducted efficiently and at proportionate cost To enforce compliance with rules / PDs / court orders.

Question 32

What procedure is used to apply for relief from sanctions?

Answer 32

Default interim application procedure; service three clear days before hearing, evidence produced by both sides ASAP

Question 33

What is the test for an application for relief from sanctions?

Answer 33

Denton test: 1: if the breach is neither serious nor significant, relief should be granted 2: if breach is serious / significant – why did the default occur 3: All the circumstances of the case

Question 34

Is an in time application for an extension of a deadline a relief from a sanction?

Answer 34

No - relief from sanctions happen when the deadline has already passed.

Question 35

When is an application to set aside default judgment considered as an application for relief from sanctions?

Answer 35

When the defendant is relying on the discretionary ground to set aside judgment in default - apply Denton principles.

Question 36

What are the four 'tracks'?

Answer 36

* Small claims track * Fast track * Intermediate track * Multi-track

Question 37

When allocating track, what will a court disregard?

Answer 37

* Interest * Costs * Any amount not in dispute * Contributory negligence

Question 38

What is in the scope of the small claims track?

Answer 38

Cases of not more than £10,000 Claims by a tenant, against a landlord, [residential] under £1,000

Question 39

What is in the scope of the fast track?

Answer 39

Normal track for claims up to £25,000 as long as the following are fulfilled: Trial will not last longer than one day Only oral expert evidence from one expert party

Question 40

What is in the scope of the intermediate track?

Answer 40

Standard track for claims up to £100,000 as long as: Trial won't last more than 3 days if managed proportionately Oral expert evidence is limited to two experts per party

Question 41

Give an overview of the process of allocation?

Answer 41

Defence is filed Court send out notice of proposed allocation Parties file DQs If claim has been provisionally allocated to any track except small claims - parties also file proposed directions Court allocates track and serves a notice of allocation If allocated to small / fast; court will give directions If allocated to intermediate or multi; court will give directions or fix a date for CMC

Question 42

What happens if all parties request a stay in the directions questionnaire?

Answer 42

A stay of one month can be granted in order to settle

Question 43

What is included in a directions questionnaire?

Answer 43

Disclosure, witnesses, expert evidence, trial time, costs, directions, which court, which track / complexity band parties think they should be in

Question 44

Aside from the pure value of a claim, what other factors will a court consider when allocating a case to track?

Answer 44

Nature of the remedy sought Complexity of facts / law / evidence Number of parties Value of counterclaim Amount of oral evidence which might be required Importance of the claim more widely Views of the parties Circumstances of the parties

Question 45

Summarise the court's approach in terms of allocation to track?

Answer 45

Identify the normal track Decide if there is any reason whether the claim should be allocated to a track other than the normal track.

Question 46

What are the key features of the small claims track?

Answer 46

Very limited costs recovery Fewer formalities Abbreviated directions Encouraged to be a litigant in person

Question 47

What key features are included in the abbreviated directions in the small claims track?

Answer 47

Serve documents that parties intend to rely on no later than 14 days before main hearings Original documents should be brought to hearings Notice of hearing date -- usually at least 21 days Court informed if case settles

Question 48

What do standard fast track directions include?

Answer 48

All number of weeks are from the notice of allocation: Disclosure in 4 weeks Exchange of witness statements within 10 weeks Exchange of experts' reports 14 weeks Filing pre-trial checklists within 22 weeks Trial date - 30 weeks

Question 49

To what kind of cases does the intermediate track apply?

Answer 49

Applies to cases issued on or after 1 October 2023, or for PI cases, where the cause of action arose / accrued on or after 1 October 2023

Question 50

What are the key features of the intermediate track?

Answer 50

Normal track for claims up to £100,000 where the trial is likely to last for no longer than 3 days if managed proportionately Oral expert evidence limited to two experts per party Total length of witness statements and summaries limited to 30 pages Expert reports limited to 20 pages Maximum of three parties

Question 51

What kind of claims are in intermediate track complexity band 1?

Answer 51

Only one issue is in dispute Trial won't last longer than one day PI claims where liability or quantum is in dispute Road traffic related non-PI claims Defended debt claims

Question 52

When might a case management conference be vacated?

Answer 52

If parties agree appropriate directions, submit them to court 7 days in advance of the CMC

Question 53

When should intermediate track trials take place?

Answer 53

Within 30 weeks of allocation

Question 54

How are costs allocated on the multi track?

Answer 54

Managed by the costs management regime

Question 55

Why will there have to be a CMC on the multi track?

Answer 55

Ensure that the real issues between the parties are identified and understood by the parties and the court

Question 56

What will the CMC test the parties on on the multi track?

Answer 56

o Suitability of the case for settlement o Position that parties have reached in the litigation o Steps parties have already taken o Compliance with previous directions / orders o Estimated costs of litigation and whether this is proportionate o Steps to be taken in the future

Question 57

What will the court consider at the multi track CMC?

Answer 57

* Is claim clear * Do any statements of case need amending * What disclosure required if any * What expert evidence required / how / when it should be obtained * What factual evidence should be provided for * Whether any further information is required * Would it be just / save costs to order a split trial / trial of one or more preliminary issues

Question 58

Who bears the costs if a CMC is postponed?

Answer 58

The defaulting party is likely to receive an order for wasted costs

Question 59

Give an overview of the CMC procedure, in particular any time limits for submissions?

Answer 59

14 days before first CMC: Submit disclosure report and any electronic documents questionnaire 7 days before CMC: file draft directions

Question 60

What should a disclosure report before a CMC include? When should it be submitted by?

Answer 60

14 days before the first CMC o Describe what documents exist / may exist o Describe where / with whom documents are / may be located o Describes how any electronic documents are stored o Estimates broad range of costs that could be involved in giving standard disclosure in the case including costs or searching for and disclosing any electronically stored documents o States which of the disclosure directions are to be sought

Question 61

If a party considers that a case summary would be useful, what does it need to look like?

Answer 61

Short document of no more than 500 words, prepared by the claimant and if possible agreed with defendant summarising the case

Question 62

Where does the costs management regime apply? When does it not?

Answer 62

Multi track claims Does not apply to the following: * Where amount of money claimed is £10m * Claims made by children

Question 63

What kind of discretion does the court have with the costs management regime?

Answer 63

Can disapply it when it wants, or apply it when it should not normally apply

Question 64

Set out the costs management procedure in detail.

Answer 64

Parties prepare budgets; filed and exchanged 21 days before the first costs management conference Budget discussion report record the extent to which the parties have agreed budgets Filed and exchanged 7 days before the first CMC Budgets and budget discussion reports are considered by the court Directions determined in light of estimated costs

Question 65

When will the costs budget be filed?

Answer 65

If value of the claim is less than £50,000 - with the parties Directions Questionnaires, Otherwise - 21 days before CMC

Question 65

What is a 'budget' in dispute resolution?

Answer 65

Estimate of reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings

Question 65

When should a budget discussion report be filed?

Answer 65

Precedent R 7 days before the first CMC

Question 66

What does a budget discussion report illustrate?

Answer 66

The figures in budgets agreed, and those that are not

Question 66

Once a court has approved a costs budget, what does this indicate?

Answer 66

That costs are reasonable and proportionate

Question 67

When can a party's budget be revised after it has been agreed?

Answer 67

When there is a significant development in the litigation

Question 67

What happens if a party fails to file a budget?

Answer 67

the defaulting party is treated as having filed a budget of only applicable court fees, unless the court orders otherwise.

Question 68

Summarise the deadlines for the key documents for the CCMC

Answer 68

21 days beforehand, Precedent H budget 14 days beforehand, Disclosure Report 7 days beforehand: agree proposed directions, and the budget discussion report

Question 69

What procedure should be followed in advance of a case management hearing in terms of disclosure on the multi track?

Answer 69

the parties need to file a disclosure report not less than 14 days before the case management conference discuss and seek to agree a proposal in relation to disclosure not less than 7 days before the case management conference

Question 70

If a costs order is made without a client being in court, what time limit does the solicitor have to tell client about costs order?

Answer 70

Solicitor must inform client within 7 days of the order being made

Question 71

How are indemnity costs calculated?

Answer 71

Must be reasonable but no need to be proportionate

Question 72

When will the court divert from a costs management order?

Answer 72

Only if a significant development in litigation

Question 73

What do you do 7 days before CCMC?

Answer 73

Agreed proposed directions (agreed between parties - for court to consider)

Question 74

What is the difference in the method of assessing costs on a standard versus indemnity basis?

Answer 74

On the indemnity basis there is no need for any costs to have been incurred proportionately - but they still do have to be reasonable Any doubt is resolved in favour of the receiving party - in standard, it is the other way around

Question 75

What costs are recoverable on the fast track?

Answer 75

Fixed costs only, with a percentage increase or reduction depending on the conduct of the parties

Question 76

Does a litigant in person need to file a costs budget?

Answer 76

No

Question 77

What does 'no order as to costs' mean?

Answer 77

That each party will bear its own costs in the application whatever the outcome at trial.

Question 78

How can you vary the date of a CMC?

Answer 78

The party responsible for the cause of the variation should apply to the court to vary the date as the parties cannot vary the date of the CMC by written agreement

Question 79

When can a court strike out a statement of case without giving the parties a reasonable opportunity to make representations?

Answer 79

No grounds for bringing the claim / abuse of court's process

Question 80

If you need to vary the time in which a pre-trial checklist would be served on fast / intermediate track, how should you do this?

Answer 80

apply to court for a variation of the date

Question 81

What is the only financial element to be considered in allocation?

Answer 81

Value of a counterclaim

Question 82

Describe some key features of the detailed costs assessment procedure?

Answer 82

- Must be presided over by a costs judge - 3 months to commence detailed assessment procedure - Paying party serves a notice of commencement on the receiving party and serves this at court

Question 83

Which tracks are subject to the fixed recoverable costs regime?

Answer 83

Fast and intermediate

Question 84

If a party fails to file a Directions Questionnaire twice in the County Court, once after a notice filed by court, what is the court likely to do?

Answer 84

Strike out their statement of case