The Court’s Powers

CPR Part 3 gives the court a wide range of case management powers
r.3.1(2) sets out the court’s general powers
r.3.4(2) sets out the Court’s specific powers to strike out a party’s statement of case

Striking out a Statement of Case and other sanctions

(See Sanctions Sheet)

Striking out:

r.3.4(2) gives the court power to strike out a party’s statement of case (“SC”) when:

r.3.4(2)(a),the SC discloses no reasonable grounds for bringing or defending the claim

r.3.4(2)(b); the SC is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings or

r.3.4(2)(c) there has been failure to comply with a rule, practice direction or court order (Biguzzi v Rank Leisure)

Sanctions other than striking out:

Costs (party at fault pays the other party’s costs)
Wasted cost order (if party’s legal rep. is at fault and caused loss or delay he pays) SCA 1981 s.51
Interests (court may alter the interest payable to claimant if he is at fault)
The Unless Order = is not strictly a sanction but rather a suspended sanction PD 28 paras 5.1 and 5.2 and PD 29 paras 7.1 and 7.2

The court makes an order that unless a party complies with a particular court order or rule,
within a specified time,
his claim or defence will be struck out

if the party subject to an Unless Order does not apply for an extension the Strike Out order will take automatic effect and the case will be Struck Out without further action required CPR PD 3 para 1.9

Relief from Sanctions

r.3.8 and r.3.9

r.3.8(3) Where a Rule, PD or court order requires a party to do something within a specified time, and specifies the consequences of failure to comply, the party in question CANNOT apply for an extension by agreement between the parties.
r.3.9(1) when granting a relief the court will consider all the circumstances of the case to enable a just, proportionate and compliant with the rules decision; an application for relief must include explanation as to:

why the failure occurred
the extent to which the party has otherwise complied with the rules, PD, court orders and Pre-action Prot,
whether the failure was caused by the party or its legal rep.,
whether the trial date can still be met if relief is granted,
the effect which the failure to comply has had on each party and,
the effect which the granting of relief will have on each party.

Allocation to a Track (Civil Lit Book Chapter 9 p126)

What is it?

When to file?

CPR part 26 deals with the preliminary stage of case management (“CM”) when cases are allocated to a particular track. This stage of CM arises where a defence has been filed then,
The court serves notice on each party of the proposed allocation. Parties need to fill in the Allocation Questionnaire AQ (AKA Form N150 for fast track and multi-track, Form N149 for small claims and Form N151 if the court must decide amount of claim).
Then the parties need to file and answer their Directions Questionnaire (“DQ”) (AKA Forms 180/1):

Small Claims Track cases have 14 days to complete and file their answer DQ (Form N180)
Fast-track and Multi-Track have 28 days to complete & file their answer DQ (Form N181)

Form N180/1’s date of filing cannot be changed r.26(6A)
Must file your costs estimate with the AQ (Costs PD para 6.4(1))

Failure to file?

None of the Parties File:

Judge will make an Unless Order (“UO”)
If AQ then not filed within 7 days of the UO, claim will be struck out (PD 26, para 2.5(1))

One Party has Filed:

Court allocates based on available information (if possible)
If not possible, an allocation hearing is ordered
Party who didn’t file is to pay the costs of the one who did on indemnity basis or have their claim/defence struck out (PD 26 para 6.6)

T&F NOTE If opponent in a multi-track case has failed to take a step in accordance with the timetable. You should first warn your opponent that you intend to make the application to the court. See PD 29 para 7.2.

Scrutinising the AQ

Always scrutinise you opponent’s AQ; in particular, consider:
- Part C: whether the pre-action protocols compliance is accurate
- Part D: whether we should interview any witnesses named
- Part D: what position they have taken with experts and what that means
- Part D: whether they have disclosed any electronic documents
- Part G: their costs estimate
- Part I: if any additional information has been supplied

Which Track? (Civil Lit Book pages 130-134)

Rule 26.8(1) sets out the factors to which the court must have regard when Allocating the Track, 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 Part 20 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.

Rule 26.8(2) when the court calculates the financial value of a claim it will disregard –

any amount not in dispute; (b) any claim for interest; (c) costs; and(d) any contributory negligence.

T&F NOTE The value of the claim is only one of the factors which the court will take into account when deciding on allocation.

Small Claims Track

CPR Part 27 + PD 27

(AQ Form N149)

(DQ Form N180)

Fast Track

CPR Part 28 + PD 28

(AQ Form N150)

(DQ Form N181)

Multi-Track

CPR Part 29 + PD 29

(AQ Form N150)

(DQ Form N181)

Claims worth no more than 10,000 (PD 26 Para 8.1(1))
Do not aggregate claim and counter-claim; just take the largest of them (PD26 para 7.7)
Part 18, Part 31, Part 32, part 35 and Part 36 Do not apply unless court orders otherwise.

Claims between 10,000-25,000
Take one day or less
County court unless it raises a point of public interest
Parties’ may vary directions (r.28.4)
Failure to comply with direction does not postpone trial (PD 28 para 4.5)
Exchange of witness statements and expert reports must be simultaneous
Form N170(Pre-trial check list) must be returned by parties 8 weeks before trial
PD 28, para 7 = Listing Directions
Usually a Joint Expert

Claims worth more than 25,000
To county court if easy
To high court if complex
Court may:

Give directions for management of the case and set timetable for steps between giving directions and trial
Fix a CMC, or a pre-trial review or both and give directions

See PD29 para 2.6 for suitability for the RCJ
Fix a CMC see below
Case Summary see below

Automatic Transfer to Local Court

Part 26.2(1)

After allocation, the defendant can get an automatic transfer to a court more local to them if:
- The claim is for a specified sum, transferred to D’s county court
- The court the C has begun proceedings in is not the D’s ‘home court’
- The D is an individual
- Any other Ds in the proceedings have not yet taken steps

Parties must be given at least 7 days notice
The legal representative who attends should be:
- The legal representative for the case (PD 25 para 6.5)
- Who is familiar with it; and
- Has sufficient authority to take any decisions that are likely to arise
Non-compliance will result in a costs order against the party who did not attend

Variation of Directions (r 29.5) In Fast Track and Multi Track

Parties must apply to the court if they wish to vary the date which the court has fixed for:

A case management conference,
A pre-trial review;
The return of pre-trial checklist; (Fast Track)
The trial; (Fast Track)
The trail period. (Fast Track)

Function

PD 29 para 5.1: the CMC is to:

Review the steps the parties have taken and their compliance
Decide on and give directions
Decide whether the C’s case is clear (para 5.3)
Whether any amendments are necessary to any statement of case (para 5.3)
Decide what disclosure is necessary
Decide what expert evidence is necessary – if any (PD 29 para 5.5(1))(PD 35, para 7, states it should be a Joint Exp, but separate Exp are allowed if it is proportionate)
Decide whether a joint expert would be appropriate

Preparation

PD 29 para 5.6: the parties should:

Ensure all appropriate documents are brought to the court
Consider who should attend the CMC
Consider a Case Summary + (PD 29 para 5.7(1) outline of Case Summary BELOW)
Consider what orders each wishes to be made and give notice to the other party

Who Must Attend

r.29.3(2) The legal representative who attends the CMC:

Must be familiar with the case and,
have sufficient authority to take any decisions that are likely to arise

It should be someone who is personally involved with the case (PD 29 para 5.2(2)) Non-compliance will lead to a wasted costs order

Conduct

The CPR requires CMCs to be conducted by telephone, unless otherwise ordered (PD 23 para 6.2)
The C’s designated legal representative should organise it (PD 23A para 6.10(1))
He is to tell the operator the number of all the people attending (para 6.10(2))
Whoever initiates the CMC will pay for it (para 6.10(8)) but it is usually the Claimant.

T&F NOTE If you wish the court to award Summary Judgement or Security for Costs at the CMC, your client should make an application for such. (PD 29 para 5.8(1)) Details in WS 8 and Below

Case Summary (Templatep350) and (Samplep410)

#10171 - Allocation Case Management Conference - Civil Litigation

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