#10347 - Track Allocation And Case Management - BPC Civil Litigation

TRACK ALLOCATION AND CASE MANAGEMENT

WHICH JUDGE CAN MAKE CASE MANAGEMENT DECISIONS?

• DJ, master or judge can make case management decisions, unless rule PD or enactment provides otherwise (r2.4)

• RCJ - masters (PD 29 para 3.10)

• district registry - DJs

• coco - DJ or CJ

• docketing (assigning case to 1 judge from issue to trial)

  • complex multi track cases only

PROVISIONAL TRACK ALLOCATION AND FILING DQs

1. D files defence

2. if hearing (e.g. SJ) happens before allocation, court may dispense with DQs, treat hearing as allocation hearing, make order for allocation and give case management directions (PD 26 para 2.4(a))

3. court officer provisionally allocates track

4. court officer serves notice of proposed allocation on each party:

   • requires parties to file DQ (at certain court) by specified date (CANNOT be varied):

   • date will be at least 14 days (small claims) / 28 days (fast / multi) after deemed service

5. parties file DQs AND pay fee (no fee in part 8 claim <1500)

   • must file DQ by date in notice of allocation

   • may be required to file:

     • draft proposed directions

     • costs budget

     • multi track - disclosure report

Failure to file DQ

• designated money claims: (r26.3(7A))

  • court will serve further notice, requiring compliance within 7 days

  • if don't comply within 7 days SoC struck out

• other claims: (r26.3(8))

  • court will make order considers appropriate

    • directions of own initiative / list case for case management conference / strike out / enter default judgment (PD 26A para 2.5(3)

• costs sanctions for all claims: defaulting party

  • will NOT get order for costs of app to set aside / vary order nor of attending case management conference

  • will be ordered to pay costs caused by default to other party (unless court thinks unjust)

Non-payment of allocation fee

• automatic strike out after due warning from court (r3.7)

• court sends D notice explaining that any II will cease to have effect after 14 days unless C applies to reinstate prompts D to apply for costs against defaulting C

• court can reinstate claim - conditional on payment within 2 days of order (if C present at hearing) / 7 days of service (if C not present at hearing)

STAY FOR ADR

• parties can request 1 month stay in DQ - granted if all parties request (court can extend by request in writing from parties)

• court can also grant 1 month of its own initiative

• C must tell court if reach settlement

• if at end of stay no settlement reached case management + track allocation

TRACK ALLOCATION

Procedure (continued from above)

6. if necessary, court may hold allocation hearing (r25.5(4))

7. when is track allocated? (r25.5(1))

   • when all parties file DQ / when making order for non-compliance of non-designated money claim under r26.3(8)

   • exceptions

   • stay for ADR - allocate at end of stay

   • case automatically transferred - after transfer by destination court

   • default judgment / judgment on admission - give directions, if necessary allocate track

8. when track allocated, court will serve notice of allocation on every party (r29.9)

9. court may subsequently re-allocate to different track (r26.10)

   • if dissatisfied with allocation

     • party should appeal if order made at hearing at which he was present / represented / given notice of (PD 26A para 11.1(2))

     • otherwise, should apply to court to re-allocate (PD 26A para 11.1(3)) - court usually gives 3 days' notice of hearing (PD 28 para 4.3(b))

   • if change in circumstances since allocation, court may re-allocate on application or of own initiative

Small claims track

• GENERAL RULE - any straightforward claim with a value of not more than 10k

• PI and death - value of claim not more than 10k + PSLA damages not more than 1k

• Claims by residential tenants against landlords

  • for repairs not more than 1k + damages not more than 1k

  • NOT certain claims for harassment / unlawful eviction (r26.7(3))

• NOT disputed allegations of dishonesty (PD 26A para 8.1(d))

Fast track

• small claims NOT normal track +

• can deal with justly on fast track (PD 26A para 9.1(1)) +

• value of not more than 25k+

• trial likely to last for no longer than 1 day (5 hours), though NOT necc conclusive (PD 26A para 9.1(3)) +

• oral expert evidence at trial limited to 1 expert per party per field + expert evidence in 2 fields

• court also consider likely case management directions and court's power to control evidence and XX (PD 26A para 9.1(3)

Multi track

• following allocated to multi track:

1. if small claims / fast track NOT normal track

2. issue of public importance

3. test case

4. medical negligence case

5. case where right to trial by jury

Matters court considers in allocating track

1. the financial value, if any, of the claim;

• if no financial value, choose most suitable, having regard to all matters (r26.7(2))

2. the nature of the remedy sought;

3. the likely complexity of the facts, law or evidence;

4. the number of parties or likely parties;

5. the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it;

• where the claim involves 1+ money claim, court will only take into account largest (won't aggregate)

6. the amount of oral evidence which may be required;

7. the importance of the claim to non-parties;the views expressed by the parties (not binding); and

8. the circumstances of the parties.

SMALL CLAIMS TRACK

CPR provisions which don't apply to small claims (r27.2)

• most interim remedies (except IIs)

• standard disclosure (more limited applies)

• most rules on experts (need permission of court for oral / written expert evidence (r27.5))

• requests for further info can only be made by court (r27.2(3))

• part 36 offers

Standard directions

• standard direction =

1. parties shall file + serve on other side copies of documents intend to rely on no later than 14 days before hearing

2. original documents to be brought to hearing

3. notice of hearing date + length of hearing (hearing fee payable within 14 days of the notice)

4. parties should contact each other with view to settlement / narrowing issues + obligation to inform court if settlement reached

5. inform parties expert evidence NOT allowed without court's express permission

Special directions

• witness statements

  • if necessary, need special direction

  • criteria for making WS order:

    • whether parties represented

    • amount in dispute

    • nature of matters in dispute

    • whether ordering party to give further info would be better at clarifying case

    • access to justice without undue formality, cost, delay (PD 27 para 2.5)

• expert evidence

  • if necessary, need special direction + must mention in DQ

  • limited to expert's report unless oral evidence in interests of justice (r35.5(2))

Prelim hearing

• court may hold to limit expense where

  • special directions needed to ensure fair hearing + necessary for party to attend court so understands how to comply; OR

  • strike out / summary judgment suitable

• must give parties 14 days' notice of prelim hearing date (r27.6(3))

• may treat as final hearing if parties agree (r27.6(4))

Disposal without a hearing - may if all parties agree (r27.10)

Final hearing

• usually dealt with by coco DJ in chambers

• general (r27.8)

  • court may adopt any fair method

  • informal

  • strict rules of evidence do NOT apply

  • court need not take evidence on oath

  • court may limit XX

  • court must give reasons for decision

• representation

  • intention for parties to represent selves

  • corporate body may be represented by any of employees (PD27 para 3.2(4))

  • legal representation common if part(ies) have insurance

  • individual or company may have lay representative only if client attends (PD 27 para 3.2(2))

Rehearings (r27.11)

• party who did not attend final hearing or give written notice may apply to set aside order made in absence + order for rehearing

• must apply within 14 days of absent party being notified of judgment

• allowed only if good reason for absence + absent party has reasonable prospect of success

Costs (very restricted)

• no costs between parties except: (r27.14)

  1. fixed costs re: issue of claim

  2. injunction / specific performance claims: cost of legal advice and assistance up to 260

  3. court fees (issue fee, allocation fee (if claim worth more than 1500), hearing fee)

  4. reasonably incurred witnesses' expenses

  5. loss of earnings up to 90 / day

  6. experts' fees up to 750 / expert

  7. costs resulting from unreasonable behaviour (rare)

  8. in appeals, cost of approved transcript

  9. stage 1 and 2 costs under RTA protocol not paid by D where C reasonably believed claim exceeded small claims limit

  10. if party has behaved unreasonably court may make summary assessment of costs in favour of innocent party

• if case is reallocated, fast / multi track rules on costs apply from date of re-allocation (r27.15)

FAST TRACK - standard timetable - very useful + need to know - see Sime p.307

Listing hearing - court may hold before confirming trial date (rare)

Agreed directions

• parties encouraged to agree directions and file with DQ

• if suitable, court will simply approve

• must deal with: timetable, trial date, disclosure, WSs, expert evidence (in accordance with rules for standard directions below)

Standard allocation directions

• court will give case management directions when allocates track:

• timetable - for steps pre-trial N.B. trial timetable

• trial date

  • fix trial date (or trial period not exceeding 3 weeks) no more than 30 weeks later (r28.2) - specified in notice of allocation

• disclosure of documents

  • standard disclosure (r28.3(1)(a)) = serve list of documents by certain date, usually 28 days after service of notice of allocation (PD28 para 3.12)

  • no disclosure (r28.3(2)(a))

  • specify documents / classes of documents parties must disclose (r28.3(2)(b))

  ...