Case Management and Allocation of Cases Chapters PDF

start here Case Management and Allocation of Cases 141 CHAPTER 9 Case Management and Allocation of Cases 9.1 Introduction...

start here Case Management and Allocation of Cases 141 CHAPTER 9 Case Management and Allocation of Cases 9.1 Introduction 141 9.2 The court’s powers 141 9.3 Striking out a statement of case and other sanctions 142 9.4 Relief from sanctions 145 9.5 Allocation 147 9.6 Allocation to a track 152 9.7 Costs management 163 9.8 Overview of multi-track case and costs management 168 LEARNING OUTCOMES After reading this chapter you will have learned: the circumstances in which a statement of case may be struck out the different types of sanctions the court may impose on a party how to get relief from a sanction the role of the directions questionnaire what influences the allocation of a case to a particular track what claims are typically dealt with on the small claims track the type of directions given on the fast and intermediate tracks the standard fast track timetable the role of a case management conference in intermediate and multi-track cases how to draft a case summary for use at a case management conference the role of costs budgets. 9.1 INTRODUCTION One of the key elements of the CPR 1998 is the notion of case management. As we saw in Chapter 1, 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. We shall look first at the court’s general powers in r 3.1(2) and then consider the specific power to strike out a party’s statement of case in r 3.4(2). 9.2 THE COURT’S POWERS Rule 3.1(2) sets out a 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 an application for extension is made after the time for compliance has expired); (b) adjourn or bring forward a hearing; (bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court; (c) require a party or a party’s legal representative to attend the court; 142 Civil Litigation (d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication; (e) direct that part of any proceedings (such as a counterclaim) be 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 exchange a costs budget; (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case. The court may make any order subject to conditions and can specify the consequence of non- compliance, for example that a party pay a sum of money into court pending the outcome of the proceedings. In particular, by r 3.1(5), the court may make such an order if that party has, without good reason, failed to comply with a Rule, Practice Direction or a relevant pre-action protocol. In exercising its power under r 3.1(5), however, the court must have regard to both the amount in dispute and the costs the parties have incurred or may incur. By r 3.1(6A), any money paid into court stands as security for any sum payable by that party to any other party in the proceedings. 9.3 STRIKING OUT A STATEMENT OF CASE AND OTHER SANCTIONS Rule 3.4(2) gives the court a specific 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. 9.3.1 Inadequate statements of case Practice Direction 3A, para 1.2 gives examples of the types of statement of case that may fall to be struck out within (a) above. These include particulars of claim that set out no facts indicating what the claim is about – for example, ‘money owed £5,000’ – and particulars of claim that contain a coherent set of facts, but where those facts, even if true, do not disclose any legally recognisable claim against the defendant (claims that are ‘doomed to failure’: see Miller v Sutton (Court of Appeal, 14 February 2013)). As far as defences are concerned, it gives examples of a defence that consists of a bare denial or otherwise sets out no coherent statement of facts, or a defence that, whilst coherent, would not, even if true, amount in law to a defence to the claim. Where a statement of case is defective but can be cured by amendment (see 7.6), rather than strike it out, the court may give the party concerned an opportunity to amend it (see, for example, Nash v 4MA Ltd EWHC 3383 (TCC)).  Case Management and Allocation of Cases 143 EXAMPLE A claimant issues proceedings for the recovery of a debt. A defence is filed that simply consists of a bare denial that the money is due. The defendant has therefore failed to comply with r 16.5 of CPR 1998 (see Chapter 7). The judge, when looking at the case, may, as part of their case management powers under Part 3, make an order that unless the defendant files a full defence setting out their reasons for denying that the debt is owed within seven days of service of the order, the defence will be struck out. Note that the court may, as in the example given, make such an order of its own volition; or, alternatively, the claimant in such a case may make an application to the court for an order in similar terms. If, in the example given above, the defendant did not comply with the order then the claimant would be able to obtain judgment simply by filing a request for judgment. As this was a debt claim, the claimant would be able to obtain judgment for the amount of the debt, together with interest and costs. If it had been a claim for an unspecified sum, the judgment would be for an amount to be decided by the court at a disposal hearing. Note that the request must state that the right to enter judgment has arisen because the court’s order has not been obeyed. See generally 6.6. Continuing with the above example, if judgment is entered in these circumstances against the defendant, the defendant can apply to the court under r 3.6 for the judgment to be set aside. Such an application must be made not more than 14 days after the judgment has been served. If the judgment had been entered incorrectly (eg, prematurely), the court must set aside the judgment. However, if the judgment was entered correctly, r 3.9 (relief from sanctions) applies (see 9.4). 9.3.2 Non-compliance with a Rule, Practice Direction or court order The striking-out sanction is not confined to cases where the statement of case is defective. As stated in 9.3, the court can also strike out a party’s statement of case and enter judgment against the party for ‘failure to comply with a Rule, Practice Direction or court order’. Striking out is, however, only one of a number of sanctions that the court can apply (see 9.3.3). How does the court decide what is appropriate? The starting point for decisions on sanctions for default is Biguzzi v Rank Leisure plc 1 WLR 1926. This was an early post-CPR case where the Court of Appeal emphasised the importance of compliance with the CPR 1998 and court orders, but recognised that, whilst it would, on occasions, be appropriate to deal with non-compliance by striking out, there were less drastic but equally effective ways of dealing with default. In many cases, the use of these other powers would produce a more just result. Given that there is a range of sanctions that the court can apply, when will it apply the ultimate sanction of striking out? In each case, the court will have to consider all the circumstances, and in particular the factors relevant to r 3.9 (relief from sanctions: see 9.4). However, the case law emphasises that the overriding objective of dealing with cases justly and the duty to ensure fairness will be a central consideration in the exercise of the court’s discretion (see, eg, Necati v Commissioner of Police for the Metropolis LTL, 19 January). The court should also bear in mind the observations of the Court of Appeal in Arrow Nominees Inc v Blackledge 1 BCLC 709, that 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. None of the above should, however, be read as a reluctance on the part of the courts to strike out a party’s statement of case in appropriate circumstances. Where delay or non-compliance means that it is no longer possible to have a fair trial (see Habib Bank Ltd v Abbeypearl Ltd 144 Civil Litigation EWCA Civ 62, 1 All ER 185), or where the default is so bad that it amounts to an abuse of the court (see UCB Corporate Services Ltd v Halifax (SW) Ltd 1 Lloyd’s Rep 154), strike out may be the appropriate response. 9.3.3 Sanctions other than striking out 9.3.3.1 Costs A common sanction is to require the party in default to pay the other party’s costs occasioned by the delay on the indemnity ‘penalty’ basis (see 14.3.3.2) or, if Part 45 fixed costs apply, on the ‘unreasonable behaviour’ basis (see 14.3.5.6). The court can make an assessment of those costs at the time of the hearing and may order those costs to be paid immediately. The solicitor handling the case would then have to explain to the client why they had been ordered to pay those costs. See generally 10.3. Where the court forms the view that the fault lies not with the party themselves but with their legal representative, the court may make a wasted costs order. This obliges the legal representative to pay costs incurred by a party as a result of any improper, unreasonable or negligent act or omission on the part of the legal representative (SCA 1981, s 51). Before making such an order, the court must allow the legal representative a reasonable opportunity to attend a hearing and give reasons why the order should not be granted. 9.3.3.2 Interest Alternatively, the court may make orders affecting the interest payable on any damages subsequently awarded to the claimant. If the party at fault is the claimant, the court may reduce the amount of interest payable on their damages. If the party in default is the defendant, the interest payable on the claimant’s damages at the end of the case may be increased. 9.3.3.3 Limiting the issues The appropriate sanction may be to limit the issues that are allowed to proceed to trial. See, for example, AXA Insurance Co Ltd v Swire Fraser (2000) The Times, 19 January. 9.3.4 The unless order If a party has not taken a step in the proceedings in accordance with a court order, what should the other party do? It will serve the overriding objective (see 1.1) 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, intermediate track and multi-track proceedings, where, for example, a party fails to follow a case management direction. Practice Directions 28 (para 5.1) and 29 (para 7.1) 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. The party entitled to apply for such an order must do so without delay, but should first warn the other party of their intention to do so. The unless order is not, strictly speaking, a sanction but rather a suspended sanction. The court makes an order that unless a party complies with a particular court order or rule within a specified time, their claim or defence will be struck out. A party who is subject to an unless order but who cannot make the deadline set should apply to the court before that deadline expires to extend it. Why? Because the strike out takes effect automatically without the need for any further court order (see PD 3A, para 1.6).  Case Management and Allocation of Cases 145 EXAMPLE Although an order of the court required the defendant, D, to serve their witness statements on their opponent, C, by a specific date, D did not do so despite reminders from C. In order to force D to comply, C applies for and obtains an unless order requiring D to serve the witness statements by a new deadline (usually seven or 14 days from the date of the unless order), failing which D’s defence will be struck out. 9.4 RELIEF FROM SANCTIONS A party’s ability to obtain relief from the sanctions imposed by the court is dealt with by rr 3.8 and 3.9. Whether relief from sanction should be granted must be determined in accordance with the approach set out in the well-known case of Denton v T.H. White Ltd EWCA Civ 906, 1 WLR 3296, but before that approach comes into play, two prior questions must be considered. The first is whether a rule, practice direction or court order imposes a sanction. The second is whether a party has failed to comply with the rule, practice direction or court order in question. In the present case the unless order undoubtedly imposed a sanction, namely that in the event of non- compliance CNM’s claim would be struck out. That means that its whole claim would be struck out. There was no scope for the halfway house adopted by the judge, which was to hold that the effect of the order was to prevent CNM from pursuing a claim which was not included in the draft amendment served within the time specified, while permitting the claim which it had pleaded in time to go forward. That is not what the unless order said. The correct position was that either CNM had complied with the order, in which case no question of relief from sanction arose, or it had not, in which case (subject to relief from sanction) its whole claim was struck out. So did CNM comply with the order? This is a binary question. Either it did or not. What the order required CNM to do was to serve a draft amendment to its Particulars of Claim within the specified deadline. That is what it did. It cannot be, and was not, suggested that the document which CNM served was not a ‘draft Re-Re-Amended Particulars of Claim’. Accordingly it complied with the order. That should have been the end of any question of relief from sanction being needed. I would accept that it is possible to envisage a case where a party who is required to comply with an unless order, for example by serving a pleading, does something within the deadline which cannot properly be regarded as compliance, for example by serving a document which contains gibberish or blank sheets of paper or that a party may serve a Response to a Request for Further Information which provides some but not all of the information which a party has been ordered to provide. In such a case, it would be obvious that there has been non-compliance and the sanction takes effect. But this case is far removed from anything like that. (per Males LJ in CNM Estates (Tolworth Tower) Ltd v Carvill-Biggs EWCA Civ 480 at –) Where a party has failed to comply with a Rule, Practice Direction or court order, any sanction for failure to comply imposed by the Rule, Practice Direction or court order has effect unless the party in default applies for and obtains relief from the sanction. [J]ust because a rule, PD or order provides that a party needs permission to take a step, does not mean that that need for permission has been imposed as a sanction for breach of something. There are cases in which a permission requirement has indeed been imposed as an [sic] sanction – such as r32.10 as it applies to witness statements – but there are other cases in which the need for permission under the rules is plainly not there as a sanction for breach. An example which springs to mind is the general requirement for permission to amend statements of case. (per Birss LJ in Yesss (A) Electrical Ltd v Warren EWCA Civ 14 at ) Note that where the sanction is the payment of costs, the party in default may obtain relief only by appealing against the order for costs. Where a Rule, Practice Direction or court order requires a party to do something within a specified time, and specifies the consequence of failure to comply, can the time for doing the act in question be extended by agreement between the parties? Yes, unless the court has 146 Civil Litigation ordered otherwise or it would put at risk any hearing date, the parties may by prior written agreement agree an extension up to a maximum of 28 days (r 3.8(4)). Note that the court may grant relief from a sanction without a formal application being made (see Boodia v Yatsyna EWCA Civ 1705). The court has a discretion to grant relief from sanctions in two situations: where no formal application notice has been issued, but an application is made informally at a hearing; or where no application is made, even informally, but the court acts of its own initiative. The discretion must of course be exercised consistently with the overriding objective. The court, therefore, should initially consider why there has been no formal application notice, or no application at all; whether the ability of another party to oppose the granting of relief (including, if appropriate, by the adducing of evidence in response) has been impaired by the absence of notice; and whether it has sufficient evidence to justify the granting of relief from sanctions. It follows, from the need for these initial considerations, that the discretion will be exercised sparingly. That is particularly so where there has been no application at all, and the court is contemplating acting of its own initiative, because in such a situation there may well be prejudice to an opposing party and/or an absence of relevant evidence (see Park v Hadi EWCA Civ 581). 9.4.1 Relevant factors By r 3.9(1), where a party applies for relief from any sanction for failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need: (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. It is clear from the wording of this provision that the court will take a robust view of any application. How should the court approach the application? The test was established in Denton v TH White Ltd EWCA Civ 906 as follows: (a) The first stage is to identify and assess the seriousness or significance of the relevant failure. If a breach was not serious or significant, relief would usually be granted and there would be no need to spend much time on the second and third stages. (b) The second stage is to consider why the failure or default occurred. (c) The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application’. In carrying out the first stage test, the court usually concentrates on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions is sought. The court normally considers as one of the relevant circumstances of the case the defaulter’s previous conduct in the litigation, including any non-compliance with court orders. However, this approach was qualified in British Gas Trading Ltd v Oak Cash & Carry Ltd EWCA Civ 153. Where the breach consists of failure to comply with an unless order (see 9.3.4) which was itself made as a result of a failure to comply with one or more previous orders, the assessment of seriousness should take account of the previous failure(s) as well as the failure to comply with the unless order itself. If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it is normally unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance. The court also warned that a party might be penalised if they sought to take advantage of a mistake by an opponent where the failure was neither serious nor significant, a good reason could be demonstrated and it was obvious that relief from sanctions would be appropriate.  Case Management and Allocation of Cases 147 Opposing an application for relief would be viewed as a breach of r 1.3, which requires parties to help the court to further the overriding objective. In such cases, the parties should be ready to agree reasonable extensions of up to 28 days under r 3.8(4). In Davies Solicitors LLP v Rajah EWHC 519 (QB), it was stated that breaches which affect the effective timetabling of cases are likely to be considered significant. However, in Marchment v Frederick Wise Ltd EWHC 1770 (QB), relief was granted where the trial date had to be vacated when the claimant failed to serve a report on time. It was accepted that the breach was serious and there was no good reason. Failure to meet the trial date if relief was granted would be determinative in the majority of cases but, applying stage 3 of the Denton test and taking into account the facts that the trial was short and could be relisted within a reasonable time and other cases could be listed so there was no negative effect on public resources, the court granted relief. Lack of promptness in applying for relief may often be a critical factor: see Durrant v Chief Constable of Avon and Somerset Constabulary EWCA Civ 1624 and British Gas Trading Ltd v Oak Cash & Carry Ltd EWCA Civ 153. The factors considered by the court prior to April 2013 when considering applications for relief under r 3.9 are now subsidiary considerations to the overriding objective factors set out in the new r 3.9, but may be relevant to whether there was a ‘good reason’. The witness statement accompanying the application might therefore explain matters such as: (a) why the failure occurred; A party who is seeking relief from sanction can be expected to come before the court with a full explanation of how the need for the application comes about. It is not for the parties’ advocate to have to postulate matters that are not verified in evidence on a central issue, where the party is seeking the court’s indulgence. (per HHJ Pearce in Rapid Displays Inc v Ahkye EWHC 274 (Comm) at ) (b) the extent to which the party has otherwise complied with other rules, practice directions, court orders and any relevant pre-action protocol; (c) whether the failure to comply was caused by the party or their legal representative; (d) whether the trial date or the likely trial date can still be met if relief is granted; (e) the effect which the failure to comply has had on each party; and (f ) the effect which the granting of relief will have on each party. 9.5 ALLOCATION Part 26 of CPR 1998 deals with the preliminary stage of case management when cases are allocated to a particular track. This stage of case management arises where a defence has been filed. Where the claim is defended then, on receipt of the defence, the court provisionally decides the appropriate track for the claim and serves on each party a notice of the proposed allocation (Form 149A (SCT): small claims track; Form N149B (FT): fast track; Form N149D (IT): intermediate track; and Form N149C (MT): multi-track). As to the factors affecting allocation, see 9.6. The notice of proposed allocation requires the parties to file and serve their answers to a questionnaire, known as the directions questionnaire. This is usually in Form N181, and a copy appears in Appendix A(7). However, if the claim has provisionally been allocated to the small claims track, a slightly different form, N180, must be used. Note that the rest of this chapter will focus on the usual questionnaire Form N181. Does the court send the directions questionnaire to each party? No, only if a party is unrepresented. Otherwise the parties’ legal representatives should obtain the questionnaire themselves. It is available on HM Courts & Tribunals Service website (see 1.5). 148 Civil Litigation The notice of proposed allocation will state the date for return of the directions questionnaire and the address of the court or court office to which it should be sent. Note that where a claim has been provisionally allocated to the multi-track, the following documents must also be prepared: a case summary, if a case management conference is to occur (see 9.6.3.2 and 9.6.3.4), a disclosure report (see 11.3.3.1), a costs budget and budget discussion report (see 9.7). The parties must consult one another and co-operate in completing the directions questionnaire. In addition, the parties must try to agree the case management directions which they will invite the court to make. However, the process of consultation must not delay the filing of the directions questionnaire or, where required, the proposed directions (whether or not agreed). In all cases a draft order for directions should accompany the directions questionnaire (see 9.5.1.10). 9.5.1 Completing the directions questionnaire The directions questionnaire (Form N181) is a key document in the progress of a case and must be completed carefully by each party and filed by the set date. It is important to note that r 26.4(7) provides that the date for filing cannot be varied by agreement between the parties. The form is divided into 10 parts, lettered A to J. 9.5.1.1 Part A Settlement Part A deals with settlement. The parties are reminded that under the CPR 1998 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. To assist the court a solicitor must confirm (by ticking a box) that they have 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. Moreover, it is made clear to the parties that their answers to this part will be taken into account when the court decides who pays costs and the amount of those costs (see 14.3). The parties must 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 order a stay of one month (r 26.5(2)). Alternatively, the court, of its own initiative whether or not any party has requested it, may order a stay of any length if it considers it appropriate. If a stay is granted and the parties feel they require more time than the initial period granted to try to reach a settlement, any of the parties may, by letter to the court, request an extension of time. More than one extension of the stay may be granted. If a settlement is reached, the claimant must tell the court. If a settlement is not reached, the court will allocate the case and give directions in the usual way. Note that in Part A the parties can request the court to arrange a mediation appointment. If a party has indicated in Part A that they do not want to attempt to settle the case, they will have to set out their reasons why they consider it inappropriate at this stage. If the court later decides the party’s reasoning was faulty, or should any party fail to respond to a reasonable proposal to attempt settlement, then the court may make an adverse costs order against that party (see 14.3.3.6). 9.5.1.2 Part B Court The first section of Part B concerns cases that have been started in the High Court. The parties must address whether the claim should remain there or be transferred to a different Division or County Court hearing centre. Where the claim has been issued in the Central Office of the Royal Courts of Justice (RCJ), each party should state whether they consider the claim should  Case Management and Allocation of Cases 149 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. The second section of Part B asks the parties to identify any particular court where the case should be heard and explain why. 9.5.1.3 Part C Pre-action protocols Part C of the questionnaire asks the parties to state whether they have fully complied with the Practice Direction on Pre-Action Conduct or any relevant pre-action protocol and, if not, to explain the reasons why. 9.5.1.4 Part D Case management information Section 1 of Part D asks the parties if they have made an application to the court (see Chapter 10). Any such application should be made as soon as possible as its outcome may affect how the court manages the case. Sections 2 and 3 address the track allocation of the case. Each party must choose between the fast, intermediate and multi- tracks. If that is not agreed by the other parties, their objections and reasons for allocating the claim to a different track should be given. The basic criteria for allocation to a particular track is the financial value of the claim which is in dispute, disregarding interest, costs and any question of contributory negligence. Full details are at 9.6. Sections 4, 5 and 6 concern cases that may potentially be allocated to the fast or intermediate track and the question of assignment of the appropriate complexity band. The parties may agree the complexity band to which the claim should be assigned, but the court may decide otherwise after taking into account the factors set out in r 26.13(1) (see further 9.6 and 14.3.5.2). If allocation to the multi-track is requested, sections 7 and 8 require the party to state whether they have reached agreement about the disclosure of electronic documents (see 11.6.2) either using the Electronic Disclosure Questionnaire in PD 31B or otherwise. If no agreement has been reached, they should state the issues to be decided and whether they can be dealt with at a case management conference (see 9.6.3.2) or whether a separate hearing is required. Regardless of the track allocation requested, section 9 requires the party to state what directions are proposed as to the disclosure of non-electronic documents (see further Chapter 11). Sections 10 and 11 then address all multi-track cases, except personal injury, and ask whether or not disclosure reports have been served and whether the parties have agreed a proposal in relation to disclosure that meets the overriding objective (see further 11.3). 9.5.1.5 Part E Experts The parties should indicate at Part E if they wish to rely on expert evidence at the trial, whether they have already provided any other party with a copy of an expert’s report and whether they consider a single joint expert might be appointed. Any proposed expert must be named or 150 Civil Litigation their field of expertise identified. The likely cost of the expert’s evidence must be stated. See further 12.13. 9.5.1.6 Part F Witnesses Part F asks the parties to name the witnesses of fact they intend to call at trial and identify the facts each witness will address. As the question concerns witnesses at trial, it may not be possible or desirable at this stage to put a name to all possible witnesses. A party may well not have interviewed all potential witnesses yet, or may be uncertain which witnesses to rely on in respect of particular facts in dispute. If a party does not wish to, or cannot, ‘name names’ at this stage, they can simply indicate the number of witnesses they may call on a particular fact. This practice is arguably consistent with the overriding objective and the court’s duty to manage the case (see 1.1.1 and 1.1.3). By the pre-trial stage, the court may well be in a position to direct which witnesses may be called or whose written evidence may be read (see 12.1.2). But at this early point in the proceedings, the court is likely to consider only any necessary cap on the number of witnesses by a suitable direction such as ‘Evidence of fact is limited to [number] witnesses on behalf of each party.’ EXAMPLE – PART F: WITNESSES Witness name Witness to which facts Richard Williams Telephone call placing order 1–2 Installation of system Anne Freeman & 2 others Defects in system Janette Lee & 1 other Damage and loss 9.5.1.7 Part G Trial In section 1, the parties must give a realistic estimate of how long the trial will last in days and hours or whether more than three days are required. This is because, as a general rule, trial times are restricted to a maximum of five hours (one day) on the fast track and three days on the intermediate track. In section 2, the parties must identify any days within the following 12 months when they, an expert or an essential witness will not be able to attend court for trial or final hearing due to holiday or other commitments. 9.5.1.8 Part H Costs If a party is legally represented and the case is likely to be allocated to the multi-track, their legal advisers must normally file and serve a costs budget (see 9.7). For the consequences of failing to file a costs budget by the required date, see 9.4.1 and also 9.7.1. 9.5.1.9 Part I Other Information If a party intends to make any application to the court in the immediate future, they must state its purpose in section 1. Parties can then set out any other information they consider will help the judge to manage the claim in section 2. Details of any vulnerable parties or witnesses (see 1.1.4) should be given in section 3. 9.5.1.10 Part J Directions The parties should attempt to agree proposed directions, but whether agreed or not a draft order for directions must accompany the questionnaire. All proposed directions for fast and intermediate track cases must be based on CPR Part 28 (see 9.6.2, 9.6.3 and Appendix A(8)).  Case Management and Allocation of Cases 151 All proposed directions for multi-track cases (see 9.6.4) must be based on the specimen directions that appear on the Ministry of Justice’s website. These appear as a menu of model paragraphs, grouped under the following categories: A selection of headings Allocation, docketing, Alternative dispute resolution Before case management Case management directions Documents Evidence of fact Expert evidence Paper Order Direction Pre-trial Restriction on Extension of Timetable Schedules of loss Trial 9.5.2 Transfer of money claims Rule 26.2 provides for the automatic transfer of High Court proceedings where the claim is for a specified amount of money, the defendant is an individual and the claim was commenced in a court that is not the defendant’s home court and the claim has not been transferred to another defendant’s home court. When a defence is filed, the claim will be sent to the defendant’s home court – this will be the hearing centre serving the address where the defendant resides or carries on business. Rule 26.3 provides for transfer of money claims within the County Court. If the claim is referred to a judge for directions, a court officer may transfer the proceedings to the defendant’s home court, the preferred hearing centre or another County Court hearing centre. If the defendant is an individual and the claim is for a specified sum of money, the claim must be sent to the defendant’s home court when the parties have filed their directions questionnaires or any stay ordered by the court to attempt settlement has expired. If there are two or more defendants and one or more is an individual, the proceedings will be transferred to the home court of the defendant who filed their defence first. Note that if proceedings are transferred, the court in which the proceedings commenced will serve the notice of proposed allocation before the proceedings are transferred and will not transfer the proceedings until all parties have complied with the notice or the time for doing so has expired. A defendant to a money claim who is an individual may request that the proceedings are transferred to a County Court hearing centre that is not their home court. 9.5.3 Failure to file directions questionnaire 9.5.3.1 County Court Money Claim If a claim is a claim to which r 26.3 applies and any party does not comply with the notice of proposed allocation (see 9.5.1) by the date specified, the court will serve a further notice on that party, requiring them to comply within seven days. If that party fails to comply with the second notice, the party’s statement of case is struck out automatically, without further order of the court. In addition, unless the court thinks it unjust to do so, the party in default will be ordered to pay the costs that the default has caused to any other party. 9.5.3.2 All other claims In all other cases, if a party does not comply with the notice of proposed allocation by the date specified, the court will make such order as it considers appropriate. This may include: (i) an 152 Civil Litigation order for directions; (ii) an order striking out the claim; (iii) an order striking out the defence and entering judgment; or (iv) listing the case for a case management conference. In addition, unless the court thinks it unjust to do so, the party in default will be ordered to pay the costs that the default has caused to any other party. 9.5.4 Scrutinising your opponent’s questionnaire The parties must exchange questionnaires. What should you look for in your opponent’s questionnaire? Pay particular attention to Part C and check that the answers are accurate. As to Part F, see how many witnesses of fact your opponent has and if any witnesses have been named. Should you consider interviewing any that are named? Then check your opponent’s views on expert evidence. Is anything new revealed in Part E? Review what is said about electronic and other documents in Part D. Then check Part G and, if relevant, your opponent’s costs in Part H (see 9.7). Finally, see if your opponent supplied any additional information at Part I. 9.6 ALLOCATION TO A TRACK How is a case allocated to one of the four tracks? Generally, the most important factor in allocation will be the financial value of the claim. Claims not exceeding £10,000 will normally be allocated to the small claims track. Claims between £10,000 and £25,000 will normally be allocated to the fast track. Claims between £25,000 and £100,000 will normally be allocated to the intermediate track. Claims exceeding £100,000 will normally be allocated to the multi-track. Rule 26.13(1) sets out the factors to which the court must have regard, including: (a) the financial 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 other 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. Whilst factor (c) refers to ‘the likely complexity of the facts law or evidence’, in making this composite assessment the court is not confined by this provision or otherwise to only consider those aspects of a case that are shown to be more likely than not to arise (Wilkins v Serco Ltd EWHC 61 (KB)). As to factor (g), ‘the importance of the claim’ to non-parties, this is not confined to considerations arising from the particular circumstances of the case; the wording is capable of including importance arising from the nature of the cause(s) of action relied upon (Wilkins v Serco Ltd EWHC 61 (KB)). As to factor (h), PD 26, para 14(9) provides that the court will treat the views expressed by the parties as an important factor, but decisions on allocation are for the court, to be taken in the light of all the circumstances, and the court will not be bound by any agreement or common view of the parties. By r 26.13(2), when the court calculates the financial value of a money claim, it will disregard: (a) any amount not in dispute; (b) any claim for interest;  Case Management and Allocation of Cases 153 (c) costs; and (d) any contributory negligence. The financial value of a claim is fundamental to the question of which is the normal track for allocation, although it is not necessarily determinative of the question of allocation in any particular case. Further, the question of what is proportionate necessarily involves consideration not only of complexity and trial-length but also of value. (Elias v Blemain Finance Ltd EW Misc 15 (CC) per HHJ Keyser QC at ) What if case involves more than one claim for money, eg a claim and counterclaim or additional claim – should these be added together? No, states PD 26, para 14(10). The court will not generally aggregate the claims, but instead it will usually regard the largest of them as determining the financial value of the claims for allocation purposes. Furthermore, by r 26.9(6), the fast track is the normal track for claims with a financial value exceeding £10,000, but not £25,000, only if the trial is likely to last for no longer than one day; oral expert evidence at trial will be 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. For example, if the court at the allocation stage considered that the trial was likely to last two days then the court will usually allocate it to the intermediate track. Practice Direction 26, para 16(3)(c) does make it clear that the possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate the claim to the intermediate track or the multi-track. However, where the case involves a counterclaim or additional claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track (PD 26, para 16(3)(e)). Rule 26.9(7) provides that the intermediate track is the normal track where (a) the claim is suitable for neither the small claims track nor the fast track; (b) the claim includes a claim for monetary relief, the value of which is not more than £100,000; (c) the court considers that (i) if the case is managed proportionately, the trial will not last longer than three days; (ii) oral expert evidence at trial is likely to be limited to two experts per party; (iii) the claim may be justly and proportionately managed; and (iv) there are no additional factors, which would make the claim inappropriate for the intermediate track; and (d) the claim is brought by one claimant against either one or two defendants, or is brought by two claimants against one defendant. Where the relief sought includes a claim for non-monetary relief, the claim cannot be allocated to the intermediate track unless the court also considers it to be in the interests of justice to do so. The multi-track is the normal track for any claim for which the small claims track or the fast track or the intermediate track is not the normal track. Once all the parties have filed their completed directions questionnaires, a judge will allocate the case to a track, and the court will serve notification on every party. By r 26.18(1), a party may apply to the court to reallocate the claim to a different track. However, if the claim has been allocated to the intermediate track and directions in respect of that claim have been given, the court may only reallocate the claim where it decides that there are exceptional reasons to justify doing so. 9.6.1 Allocation to the small claims track (Part 27) Part 27 of CPR 1998 deals with allocation to the small claims track. The small claims track is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than £10,000 can be decided, without the need for substantial pre- hearing preparation and the formalities of a traditional trial, and without incurring large legal costs. 154 Civil Litigation Note that by PD 26, para 14(5), the court may allocate a claim to the small claims track even if it exceeds £10,000, and the court will not normally allow more than one day for the hearing of such a claim. 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. A case involving a disputed allegation of dishonesty will not usually be suitable for the small claims track. In most small claims cases, the court will order standard directions and fix a date for the final hearing. The court does have the power to hold a preliminary hearing, but this will happen only in a very limited number of cases. 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. But note that by r 27.2(3), the court may of its own initiative order a party to provide further information. The intention is to make the procedure as simple as possible because, in most cases, solicitors will not be involved. The reason for this is that, under r 27.14, the costs which can be recovered by a successful party are extremely limited, and therefore it is usually uneconomic for solicitors to represent the parties in a case proceeding on the small claims track (see further below). The standard directions that the court gives in small claims cases are set out in various forms which are in the Appendices to PD 27A of CPR 1998. The directions vary depending on the type of case, so that there are particular directions for claims arising out of road accident cases, building disputes, goods sold, amongst others. The simplest forms of directions, as set out in Appendix B, are as follows: 1 Each party shall deliver to every other party and to the court office copies of all documents (including any expert’s report) on which he intends to rely at the hearing no later than [ ] [14 days before the hearing]. 2 The original documents shall be brought to the hearing. 3 [Notice of hearing date and time allowed.] 4 The court must be informed immediately if the case is settled by agreement before the hearing date. 5 No party may rely at the hearing on any report from an expert unless express permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary. The hearing itself will be informal and, if all parties agree, the court can deal with the claim without a hearing at all. In other words, a court could make a decision based on the statements of case and documents submitted rather than by hearing oral evidence. By r 27.9 a party may elect to have the case determined on the documents filed at court in their absence. The court has no power to review or set aside a party’s r 27.9 election, whether on application or of its own initiative (Mohammad v Churchill Insurance Co Ltd 2 WLUK 182 (CC)). As mentioned earlier, the costs that can be recovered in a small claims case are limited by r 27.14. Generally speaking, the only costs recoverable are the fixed costs attributable to issuing the claim, any court fees paid and sums to represent travelling expenses and loss of earnings or leave. On those (rare) occasions where expert evidence is called, a limited amount may be recovered in respect of the expert’s fees. The court does have power to award further costs if a party has behaved unreasonably. … conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting in a practitioner’s judgment, but it is not unreasonable. (per Sir Thomas  Case Management and Allocation of Cases 155 Bingham MR in Ridehalgh v Horsefield Ch 205 at 232F, approved in Dammermann v Lanyon Bowdler LLP EWCA Civ 269 at ) 9.6.2 Allocation to the fast track (Section II of Part 28) When a case is allocated to the fast track, the court will give directions as to how the case is to proceed to trial. In most cases, the court will allocate the case to this track without a hearing and order standard directions. 9.6.2.1 Timetable of directions Paragraph 9.5 of PD 28 sets out a typical timetable for case preparation of a 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 Hearing 30 weeks These periods will run from the date of allocation. When the court gives directions, it will either fix the date of the trial or fix a period of up to three weeks within which the trial is to take place. Unless there are exceptional circumstances, the court will then give at least three weeks’ notice of the trial date. The parties may agree directions between themselves, but if they do so, the directions must be approved by the court. To obtain the court’s approval, the agreed directions must: (a) set out a timetable by reference to calendar dates for the taking of steps for the preparation of the case; (b) include a date or a period (the trial period) when it is proposed that the trial will take place; (c) include provision about disclosure of documents; and (d) include provision about both factual and expert evidence. In addition, the parties should also consider: (a) the filing of any reply or amended statement of case that may be required; (b) dates for the service of requests for further information under PD 18 and questions to experts under r 35.6 and when they are to be dealt with; (c) the disclosure of evidence; and (d) the use of a single joint expert or, in cases where the use of a single expert has not been agreed, the exchange and agreement of expert evidence (including whether exchange is to be simultaneous or sequential) and without prejudice discussions of the experts. Fast track standard directions, dealing with disclosure, etc, can be found online at. A copy appears at Appendix A(8). It is usual for the last direction to require the parties to ‘inform the court immediately if the claim is settled whether or not it is then possible to file a draft consent order to give effect to their agreement’. This is in accordance with the overriding objective, and in particular the principles of saving expense and allotting to a case only an appropriate share of the court’s resources (see 1.1.1). 156 Civil Litigation 9.6.2.2 Disclosure We shall look in detail at disclosure of documents in Chapter 11. However, note at this stage that pursuant to r 28.2(3), the court will determine, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure: (a) an order dispensing with disclosure; (b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party; (c) an order that directs, where practicable, the disclosure to be given by each party on an issue-by-issue basis; (d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; (e) an order that a party give standard disclosure. 9.6.2.3 Varying directions (r 28.3) Although the parties can vary certain directions by written agreement, for example for disclosure or exchange of witness statements, an application must be made to the court if a party wishes to vary the dates for: (a) any case management conference; (b) any pre-trial review; (c) the return of a pre-trial checklist; (d) the trial; or (e) the trial period. Furthermore, the parties cannot agree to vary any matter if the change would lead to an alteration of any of those dates. For example, it would not be possible to agree to delay the exchange of witness statements until after the date for the return of the pre-trial checklist, since this would inevitably lead to the need to alter the trial date or period. Practice Direction 28 states that any party who wishes to have a direction varied should take steps to do so as soon as possible (para 4.2(1)). There is an assumption that if an application to vary directions is not made within 14 days of the service of the order then the parties are content that the directions were correct in the circumstances then existing (para 4.2(2)). 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 they were present or represented, or of which they had due notice; or (b) in any other case, apply to the court to reconsider its decision. Such an application would be heard by the same judge or same level of judge as gave the original decision. Where the agreement to vary relates to an act that does not need the court’s consent, the parties need not file their written agreement to vary (which will usually be recorded in correspondence). In any other case, the party must apply to the court for an order by consent. The parties must file a draft of the order sought and an agreed statement of the reasons why the variation is sought. 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. 9.6.2.4 Failure to comply with directions (PD 28, para 5) If a party fails to comply with a direction, any other party may apply for an order enforcing compliance and/or for a sanction to be imposed (see 9.3.2). The application should be made without delay.  Case Management and Allocation of Cases 157 Practice Direction 28 is quite clear that a failure to comply with directions will not normally lead to a postponement of the trial date (see para 5.4(1)). This will not be allowed unless the circumstances of the case are exceptional. If it is practical, the court will exercise its powers in a manner that enables the case to come up for trial on the date or within the period previously set. In particular, the court will assess what steps each party should take to prepare the case for trial, direct that those steps be taken in the shortest possible time and impose a sanction for non-compliance. Such a sanction may, for example, deprive a party of the right to raise or contest an issue, or to rely on evidence to which the direction relates. Further, if the court is of the view that one or more issues can be made ready for trial within the time fixed, the court may direct that the trial will proceed on the issues which are, or will then be, ready. The court can also order that no costs will be allowed for any later trial of the remaining issues, or that those costs will be paid by the party in default. If the court has no option but to postpone the trial, it will do so for the shortest possible time and will give directions for the taking of all outstanding necessary steps as rapidly as possible. It is clear, therefore, that the trial date is sacrosanct, and the parties should ensure that they are ready for trial on the due date. 9.6.2.5 Directions as to exchange of witness statements and exchange of expert reports We shall look in detail at evidence in Chapter 12. However, note here that the evidence of those witnesses on whom a party intends to rely at trial must be exchanged in the form of witness statements. The exchange should normally be simultaneous. See further PD 28, para 3.9(c) So far as expert evidence is concerned, the direction in relation to the evidence will say whether it gives permission for oral evidence, or written reports or both, and will usually name the experts concerned or the fields of expertise. The court will not make a direction giving permission for an expert to give oral evidence unless it believes that it is necessary in the interests of justice to do so (PD 28, para 7.2(4)(b) and r 35.5(2)). In fast track cases, therefore, the usual provision will be for expert evidence to be given by means of written reports, and experts will not be allowed to give oral evidence at the trial. Furthermore, the court may order that a single joint expert be appointed, rather than allowing each party to appoint its own. 9.6.2.6 The pre-trial checklist (PD 28, para 6) The purpose of the pre-trial checklist (listing questionnaire) is to check that directions have been complied with so that the court can fix a date for the trial (or confirm the date if one has already been fixed). The directions order will specify a date by which the parties should return the pre-trial checklist. This date will be not later than eight weeks before the trial date or the start of the trial period. The pre-trial checklist will have been sent to the parties at least two weeks before it has to be filed at court. A copy of the pre-trial checklist (Form N170) appears at Appendix A(15). Parties are encouraged to exchange copies of the pre-trial checklist before filing them with the court. If no party files a pre-trial checklist, the court will direct that any claim, defence or counterclaim will be struck out unless a pre-trial checklist is filed within seven days. If some, but not all, parties have filed a pre-trial checklist, the court will give its normal listing directions or may hold a hearing (see 9.6.2.7 below). 158 Civil Litigation 9.6.2.7 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 parties should try to agree directions. 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, the parties should try to agree the contents of the trial bundle (see 14.1.3) which will contain all documents needed for use at the trial. The standard directions require that this bundle should be lodged with the court by the claimant not more than seven days and not less than three days before the start of the trial. Included in the bundle should be a case summary, not exceeding 250 words, outlining the matters still in issue, and referring, where appropriate, to the relevant documents. This is designed to assist the judge in reading the papers before the trial. The case summary should be agreed by the parties, if possible (see further 14.1.3.2). 9.6.3 Allocation to the intermediate track (Section IV of Part 28) 9.6.3.1 Directions Cases which have a financial value of more than £25,000 but less than £100,000 will, as we have seen, usually be allocated to the intermediate track. This track therefore includes a wide range of cases, from the fairly straightforward to relatively complex claims. When the matter is allocated to this track, the court will set a date to hold a case management conference (CMC). By r 28.13 the parties must try to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals, to the court at least seven days before the CMC. The directions must address the disclosure of documents, service of witness statements, expert evidence, whether to have a pre-trial review hearing and listing the case for trial. It is important to note that the following directions must be included: (a) oral expert evidence is to be limited to one witness per party, save where the oral evidence of a second expert for any party is reasonably required and is proportionate; (b) the trial time estimate must not exceed three days; (c) the total length of all the permitted witness statements and witness summaries of a party shall not exceed 30 pages; and (d) any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report. If the court approves the agreed directions, or issues its own directions, the parties are notified by the court of this and the CMC is cancelled. When drafting case management directions, the parties and the court will take as their starting point the intermediate track standard directions, which can be found online at  Case Management and Allocation of Cases 159 , and adapt them as appropriate to the circumstances of the particular case. 9.6.3.2 Common features with fast track Aside from the above matters, the intermediate track shares with the fast track the provisions discussed at 9.6.2.2 to 9.6.2.7. 9.6.3.3 Common feature with multi-track A feature common to the intermediate track and multi-track is the case management conference. We will look at the detail of this at 9.6.4.2. 9.6.4 Allocation to the multi-track (Part 29) 9.6.4.1 Directions Cases which have a financial value of more than £100,000 will, as we have seen, usually be allocated to the multi-track. The multi-track therefore includes an enormously wide range of cases, from the relatively straightforward to the most complex and weighty matters involving claims for millions of pounds and multi-party claims. Case management on the multi-track has to reflect this wide diversity of claims. In straightforward cases, the standard directions, which we have already looked at in relation to the fast and intermediate track cases, may be perfectly adequate, but in more complex cases the court will need to adapt the directions to the particular needs of the case. 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. The court will fix the trial date or the week which the trial is to begin as soon as practicable. The parties will be given confirmation by the court of the day or week in which the trial will begin following the filing of the pre-trial checklist, any listing hearing or any pre-trial review. In a fairly straightforward case, the court may well give directions without holding a case management conference. If it does so, then, by para 4.10 of PD 29, its general approach will be: (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 … and the preparation of a statement … (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. Such directions may be, for example, in the following terms: ‘The parties shall by [date] consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to 160 Civil Litigation justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make. The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.’ When drafting case management directions, the parties and the court will take as their starting point any relevant model directions and standard directions, which can be found online at , and adapt them as appropriate to the circumstances of the particular case. CASE STUDY: DIRECTIONS ORDER A directions order made in the case study is provided at Appendix D(9). You will note that this sets out a timetable of the steps the parties are required to take to prepare for the trial. 9.6.4.2 The case management conference In many multi-track cases, the court will hold a case management conference where it feels that more of a ‘hands on’ approach is needed. At any case management conference, the court will (by para 5.1 to PD 29): (1) review the steps which the parties have taken in the preparation of the case, and in particular their compliance with any directions that the court may have given, (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 as far as it can 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. What topics are likely to be considered by the court at the case management conference? These are likely to include: (a) Whether each party has clearly stated their case, for example has the claimant made clear the claim they are bringing and the amount they are claiming, so that the other party can understand the case they have to meet? As we saw in Chapter 1, r 1.4(2)(b) requires the court to identify the issues in dispute at an early stage. (b) Whether any amendments are required to the claim, a statement of case or any 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. Note that PD 29, para 5.5(1) provides that the court will not at this stage give permission for any party to rely on expert evidence unless the court can in its order either name an expert or state the relevant field of expertise. The court will also consider whether expert evidence is to be given orally or by the use of a report only at trial. (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) Whether it will be just and will save costs to order a split trial (eg, on liability and quantum) or the trial of one of more preliminary issues. In all cases, the court will set a timetable for the steps it decides are necessary to be taken. The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals, to the court at least seven days before any case management conference. Where the court approves agreed  Case Management and Allocation of Cases 161 directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated. 9.6.4.3 Who should attend the case management conference? Rule 29.3(2) provides that where a party has a legal representative, a representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend the case management conference. Practice Direction 29, para 5.2(2) further adds that the representative should be someone who is personally involved in the conduct of the case, and who has both the authority and information available to deal with any matter that may reasonably be expected to be dealt with at the hearing, including the fixing of the timetable, the identification of issues and matters of evidence. Practice Direction 29, para 5.2(3) warns that where the inadequacy of the person attending, or of their instructions, leads to the adjournment of a hearing, the court will expect to make a wasted costs order, ie the solicitor or their firm will be made personally responsible for paying the costs incurred by other parties in preparing for and attending at the hearing that is adjourned. The consequences of failing to send a properly prepared legal representative to a directions hearing were considered by the Court of Appeal in Baron v Lovell CPLR 630. The court will usually make an order imposing a sanction (see 9.3.2) where the inadequacy of the person attending or their instructions leads to the adjournment of the conference. In this case, the court made a wasted costs order against the solicitor concerned personally. As well as giving rise to potential breaches of the CPR 1998, sending a representative to attend the case management conference who is not familiar with the case or who has insufficient authority to deal with issues arising may also be in breach of the SRA Code of Conduct. It would not be in the client’s best interests (Principle 7) and arguably it may prevent the proper administration of justice (Principle 1). In the case of Tarajan Overseas Ltd v Kaye (2002) The Times, 22 January, the Court of Appeal stressed that if a judge requires a party to attend a case management conference then the individual must know about the dispute and have authority to make decisions. The Court stressed that it would be ‘objectionable … to make an order that a party should attend with a view to putting pressure on the party concerned to drop the proceedings altogether’. The Court also considered what the judge should do if they had ADR in mind. Tuckey LJ said: There is no doubt that the court, in exercising its case management powers, can order the attendance of a party: CPR 1998, r 3.1(2)(c). One good reason why this may be appropriate is to facilitate settlement if the court takes the view that the case before it is one which the parties should strive to settle. There would be nothing wrong either in requiring the attendance of a party with a view to making an ADR order …. Practice Direction 29 sets out, at para 5.6, guidelines as to how parties should prepare for the case management conference. They should: (1) ensure that all documents that the court is likely to ask to see (including witness statements and experts’ reports) are brought to the hearing, (2) consider whether the parties should attend, (3) consider whether a case summary will be useful, and (4) consider what orders each wishes to be made and give notice of them to the other parties. Any party who wishes to apply for an order that is not usually made at a case management conference should issue and serve their application in plenty of time if they know that the application will be opposed; and they should warn the court if the time allowed for the case management conference is likely to be insufficient for their application to be heard. 162 Civil Litigation 9.6.4.4 Case summary In most multi-track cases, a case summary will be prepared for any case management conference. What are the formalities? These are set out in PD 29, para 5.7(1), as follows. The case summary: (a) should be designed to assist the court to understand and deal with the 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. It can be seen that the function of the case summary is to assist the judge to identify the issues in dispute between the parties and so help the judge determine how the case should progress to trial, eg what issues require expert evidence, what issues might be suitable for ADR, etc. Remember, when completing Part F of the directions questionnaire (see 9.5.1.6), that a party can either give the names of its likely witnesses (expert and/or non-expert), or simply state the number of likely witnesses and any expert’s field of expertise. Exactly the same principles apply to the case summary. It may be that some witnesses of fact have yet to be traced or provide a proof of evidence, or the client is uncertain whether to rely on their evidence. It may be that there are so many witnesses that listing all their names is pointless. All the court needs is an indication of their number so that it can consider whether it is reasonable, give appropriate directions and start to think about the length of the trial. Likewise, a suitable expert may not yet have been found. However, as a bare minimum, the likely number of experts and their field or fields of expertise should be given. A template to help you draft a case summary is set out at Appendix B(6). CASE STUDY: CASE SUMMARY A case summary for use at a case management conference can be found in the case study at Appendix D(8). You will note that this follows the structure required by PD 29, para 5.7(1)(b). How have the parties formulated the issues in dispute in respect of the claim and counterclaim? They have taken into account the denials and non-admissions made in the defence (Appendix D(5)) and defence to counterclaim (Appendix D(6)). This skill is analysed at 7.5.1. 9.6.4.5 Variation of directions (r 29.5) A party must apply to the court if they wish 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 under r 29.6; (d) the trial; or (e) the trial period. Just like the fast and intermediate tracks, any date set by the court or the rules for doing any act may not be changed by the parties if the change would make it necessary to vary any of the dates mentioned above. A party who wishes to vary a direction (eg, because of a change of circumstances) must apply as soon as possible. There is an assumption that if an application to vary directions was not made within 14 days of service of the directions order, the parties were content that the directions ordered were correct in the circumstances then existing.  Case Management and Allocation of Cases 163 A party who is dissatisfied with the direction may appeal, but if they were not notified of the hearing or were not present when it was made, they must apply for the court to reconsider, and the court will give all parties three days’ notice of the hearing. 9.6.4.6 Non-compliance with directions (PD 29, para 7) If a party fails to comply with a direction, any other party may apply for an 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. As we saw in the fast track, the trial date is sacrosanct. The court will not allow failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional. 9.6.4.7 The pre-trial checklist (PD 29, para 8) The date for filing the completed pre-trial checklist (listing questionnaire) will be not later than eight weeks before the trial date or the start of the trial period, and the checklists 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, the court will order that the claim, the defence and any counterclaim will be struck out unless any party files a checklist within seven days of service of the order. If only some of the parties have filed a checklist, the court will usually fix a listing hearing and give directions. On receipt of the pre-trial checklists, the court may decide that it is necessary to hold a pre- trial review (or may decide to cancel one already listed). The court must give the parties at least seven days’ notice of its decision. A pre-trial review will usually occur in any heavy case, particularly when the trial is likely to 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; (b) confirm the date for trial or the week within which the trial is to begin; and (c) notify the parties of the trial timetable (where one is fixed under this rule) and the date or trial period. As with the fast and intermediate tracks, the court will also order, on listing, that a trial bundle of documents is prepared which includes a case summary and the parties’ skeleton arguments (see further 14.1.3.2). 9.6.4.8 Templates Templates to help you draft case management directions can be found at Appendix B(7) and (8). 9.7 COSTS MANAGEMENT 9.7.1 Costs budgets Costs management is an adjunct to case management in multi-track cases, whereby the court, with input from the parties, actively attempts to control the future costs of the case. How is that done? Chiefly by the parties providing budgets in a prescribed form of their own future 164 Civil Litigation costs, with those budgets being updated from time to time and submitted for agreement to the other parties and, when not agreed, to the court for approval. The purpose of costs management is that the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings, so as to further the overriding objective (see r 3.12(2) and 1.1.1). In effect, the court makes a costs management order with a view to ensuring that future costs are reasonable and do not become disproportionate by determining what steps should be taken in the proceedings and at what expense. In Porter Capital Corp v Zulifkar Masters & Others 7 WLUK 441, the third defendant sought relief from sanctions following its failure to file a costs budget in time where the costs it sought to include in the budget had already been incurred. Applying Denton (see 9.4.1) and refusing relief, the court confirmed that the regime was to control future costs and not to approve costs that had already been incurred. 9.7.1.1 Scope As we have seen, cases on the fast and intermediate tracks are governed by the fixed recoverable costs regime in Part 45. As a result, r 3.12(1) limits costs management to all multi-track cases where the amount of money claimed is less than £10 million (or contains a statement of value valuing the claim at less than £10 million). Does a litigant in person have to prepare a budget? No, but they must be provided with a copy of the budget of any other party. Litigants in person are also not required to file a budget discussion report (see 9.7.1.4). 9.7.1.2 Timing The court will set the date for filing the costs budget when it sends out the notice of proposed allocation – see 9.5. For claims of less than £50,000, this will be when the directions questionnaire is filed; for all other claims, it will be 21 days prior to the first case management conference (see 9.6.3.2). 9.7.1.3 Contents of budget What must a budget contain? Unless the court otherwise orders, a budget must be in the form of Precedent H annexed to PD 3D (there is a copy at Appendix A(9)). As you will note from the form, the budget gives a detailed breakdown of the costs and disbursements already incurred (pre-action and issue/statements of case), plus an estimate of future costs and the assumptions on which those are based for the case management, disclosure, evidence, pre- trial review, trial preparation and trial stages, along with any ADR or settlement discussions and contingencies. These are known as phases. A budget must be verified by a statement of truth signed by a senior legal representative of the party. Note that where a party’s budgeted costs do not exceed £25,000 or the value of the claim is less than £50,000, the parties must only use the first page of Precedent H. 9.7.1.4 Budget discussion report After the costs budgets have been filed and served, the parties should complete a budget discussion report in the form of Precedent R (there is a copy at Appendix A(10)). This must be filed no later than seven days before the first case management conference. A budget discussion report must set out: (a) those figures that are agreed for each phase; (b) those figures that are not agreed for each phase; and (c) a brief summary of the grounds of dispute.  Case Management and Allocation of Cases 165 [T]he introduction of Precedent R, which requires each party to comment on the cost budget of the other, has led to a great saving of time, because it has obliged the parties to adopt a realistic attitude to the budget of the other side, and has assisted in the identification of the real disputes between the parties on costs. However, even now, some parties seem to treat cost budgeting as a form of game, in which they can seek to exploit the cost budgeting rules in the hope of obtaining a tactical advantage over the other side. In extreme cases, this can lead one side to offer very low figures in their Precedent R, in the hope that the court may be tempted to calculate its own amount, somewhere between the wildly different sets of figures put forward by the parties. [That] is an abuse of the cost budgeting process. [There is a] critical need to ensure that the Precedent R process is carefully and properly adhered to by the parties to civil litigation. (per Coulson J in Findcharm Ltd v Churchill Group Ltd EWHC 1108 (TCC) at , , and ) Where a budget or only some of the phases of a budget are agreed between all parties, the court will record the extent of that agreement. It is only an entire budget or phases of a budget that are not agreed between all parties that the court will review (see 9.7.2). 9.7.1.5 Subsequent changes in budget figures What if a party’s budget changes? Once a costs budget has been approved by the court, it will be extremely difficult to persuade a court that inadequacies or mistakes in the budget’s preparation should be subsequently revised or rectified (Murray v Neil Dowlman Architecture Ltd EWHC 872 (TCC)). A party must revise its budget in respect of future costs, upwards or downwards, if significant developments occur in the litigation (r 3.15A). What is a significant development? Significance must be understood in light of the claim – its size, complexity and the manner in which the litigation has unfolded – and also from the likely additional costs that have been, or are expected to be, incurred. The amount of the additional expense is not determinative, but it is difficult to conceive that a development leading to modest additional legal expenditure, that is modest in proportion to the amount in the relevant budget phase or phases, is likely to be significant development. (per Chief Master Marsh in Sharp v Blank EWHC 3390 (Ch) at ) The starting point for the process of revision is the last approved or agreed budget. The court may be satisfied that the figures in that budget are reasonable and proportionate; for example, where the court has undertaken a thorough review and made adjustments to the budgets the parties had put forward before approving them. Or it may be that where the budgets have been agreed, it is apparent that the sums claimed and agreed are for relatively modest amounts which can be readily justified. But that may not be the case. Parties sometimes agree each other’s budgets in sums which do not appear to be either reasonable or proportionate. When an application is made to revise a budget upwards, it is open to the court to look at the existing budget to see not only whether the ‘significant developments’ relied upon have already been catered for, but also to consider the sums already agreed for the