#3191 - Allocation, Case Management And Directions - Civil Litigation

1. Allocation Questionnaires

CPR 26.3

STEP ONE: filling out the AQ.

• Court will serve AQs on each party when the defence is filed. [CPR 26.3(1)]

• Parties must complete FORM N152

• CPR 26.3(6): each party must file and complete the AQ in time specified. This will be at least 14 days after AQ was deemed served by court. The AQ must be filed at court by the deadline specified in the AQ by the court.

CRP 26.3(6A) Date to complete and file AQ may NOT be varied by agreement between the parties.

• No obligation to serve a copy on the other side! However, parties are under a general obligation to CONSULT and CO-OPERATE when completing the AQ [PD. 26 para.2.3(1)]

The AQ itself asks specifically whether a copy of the form has been sent to the other parties.

Nb. When court serves its ‘Notice of Allocation’ it will also send to each party a copy of the answered AQs – so it is best to be open and honest with the opposing party when answering AQs to avoid any further disagreement.

• All information disclosed in the AQ must be agreed or disclosed between both parties [PD.26 para 2.2(2). Court will only accept information if there is confirmation of agreement / confirmation that the information has been delivered to the other party. PD 2.2(2)(a)&(b)

• Issues that come up: within the AQs:[some listed in PD 29, Para 5.6]

** Supply court with useful information – PD. Para 2.2(3)(a)-(f): A.P.P.L.I.C.A.T.I.O.N!!!

• Failure to file AQ:

1. BOTH parties fail to file: PD 26 2.5.5(1) Court can also STRIKE OUT by sending out an Order which states that ‘unless the AQ is filed within 7 DAYS of service of this order, the claim/ defence/ counterclaim will be struck out without further order from the court”. Cost penalties mauy apply.

2. ONE party fails to file: CPR 26(5) = court has discretion to give any direction it considers appropriate.

P.D Para.2.5(2) – The judge can give a direction. The judge will either allocate on the information provided by the one party; or he will order that an ALLOCATION HEARING is listed and that all parties must attend.

STEP TWO: Court decides allocation by considering all matters relevant to allocation to a track.

• Matters relevant to allocation – CPR 26.8(1)(a - h)

See all factors! A.P.P.L.I.C.A.T.I.O.N!!!

** Finance is only ONE consideration.

• How does court decide financial value? [CPR 26.8(2)]

1. Judge will consider sum of value, but disregarding:

1. Amount in dispute

2. Claims of interest

3. Claims of contributory negligence

2. Where there is more than one claim [e.g. counter claims / part 20 claims] – the court will decide with reference to the claim which has the HIGHEST financial value [PD 26 Para 7.7]

• Changing the track

Court can allocate a case to a LOWER financial track ONLY if BOTH parties agree. [CPR 26.7(3)].

Court can allocate case to a higher financial track on his own accord.

[Considering: CPR 26.8 = financial value / remedy sought / complexity / number of parties / any counterclaims / oral evidence / importance of claim to non-parties / views and circumstances of parties] A.P.P.L.I.C.A.T.I.O.N!!!

Court also has discretion to subsequently reallocate a claim to a different track [CPR 26.10]

Fill out Form N244 if you want reallocation

STEP THREE: Court serves Notice of Allocation [CPR 26.9]

• Served on each party together with copy of AQ

2. Case Management Conference

P.D 29(5) [Exam – allocation will be to the multi-track]

Purpose of conference: PD.29 Para.5

1. Fixes the directions of the case. Issuing timetable for the case to proceed down.

2. Encourages settlement and agreement between parties where possible.

Who should attend?

CPR 29.3(2): legal representative - someone familiar with the case and has sufficient authority to agree the directions i.e. not professionally inadequate like a trainee / paralegal who does not know the case. Potential cost penalties if you waste time of court.

The Queen’s Bench Guide – at paragraph 7.2.6 - requires the attendance of the advocates (instructed to appear at trial) at any hearing at which case management directions are likely to be given.

PD.29(5.6)(2): solicitor should consider whether your client should attend – will this assist the court?

CPR 3.1(2)(c) – court can require attendance of the client at any hearing.

What should solicitor do: [comply with PD 29, Para 5.6 – to assist the court]

1. Prepare for Case management conference [documents – including witness statements, expert reports etc.]

2. Also prepare an estimate of costs – PD.26. Para.2.1

3. Prepare summary of issues (PD.29(5.7) – provides criteria for drafting a case summary. Make sure it is accurate and objective. (See draft – usually prepared by claimant)

4. Consider what ORDERS you wish to be made – give notice of them to the court and to the other parties.

5. Is there scope for making an application or concession – what can you agree on and what can you not agree on?

3. Directions

PD 29(4)

• Standard directions – listed in (PD.29.(4.2):

Firstly, court will seek to tailor its directions to the case – in particular it will consider if Pre-action protocol has been complied with / to what extent it has been complied with.

Order for standard disclosure – good idea for parties to agree a sensible timetable.

Time for exchange of witness reports

Arrangements in relation to expert witness reports – single / joint / date of exchange / without prejudice meetings of experts.

Date or period of trial.

Settlement / ADR [but only where appropriate]

Whether there are matters which are suitable for summary judgment [only where appropriate]

• What Directions should I put forward for my client:

Consider the AQs – what are the differences between claimant and defendant?

Expert witness – single or separate / what time frames / procedure

Witness Statements – how long until they can be called?

• See PD.29 para 4.7(1): criteria for courts approval on directions agreed by the parties.

• How to vary the directions given by the court – PD. 29(6)

• vary essential date: must apply to court

• vary non-essential...