#13630 - Case Management Conference - Commercial Dispute Resolution

Case Management – CPR – ‘a new procedural code with the overriding objective of enabling the court to deal with cases justly’

Court must give effect to the overriding objective and further the overriding objective by case management (CPR 1.4) – 12 points for the court to consider AND CPR 3.1(2)(m) – make any other order for the purpose of managing the case to further the overriding objective

Solicitor’s Case management:

• You should issue proceedings first in a location convenient for your client

• Discuss cost/benefit analysis of litigation with client

• O1.3 give client best possible costs information

• Costs estimate will not bind client unless the client relies upon it in deciding how to approach litigation

• Costs budget to court must be in form of Precedent H annexed to PD3E CPR 26, must be filed at court and served on either side by date order by court or at least 7 days before first CMC – failure to do so can result in court treating you as filing a budget of only the applicable court fees CPR 3.14

• CPR 3.18 it is possible for judge carrying out costs assessment to depart from approved or agreed budget if there is a good reason but revised budgets should be submitted to court for approval as soon as it becomes apparent the budget has been exceeded by more than a minimal amount

• Cost capping orders CPR 3.19-3.21 are rare

Automatic to multi-track CPR 29; 58.13

• a mandatory CMC will normally take place on the first available date six weeks after all defendants intending to file and serve a defence have done so.

• claimant’s responsibility to apply for a CMC (CCG D 3.2)

• PD 58 para 10.2 provides that, in a Part 7 claim, they must do so within 14 days of the date when all defences have been filed and served.

  • But if the claimant fails to apply for a CMC, any other party may do so or the court may fix one on its own initiative.

• CCG Para D “All proceedings in the Commercial List will be subject to management by the court”

Commercial court ? CPR Pt 58 and Commercial Court guide

• Only operates out of Royal Courts of Justice in London

• But number of Mercantile Courts in district registries of large cities (these are for more modest claims) governed by part 59 and Mercantile Court Guides for each court

Part of QBD High Court

• judges are specifically assigned and practiced in the court before becoming judges and therefore experts)

  • ensures judicial familiarity with the issues

  • save time at both interim hearings and the trial.

  • court will keep the progress of each case under regular review and the parties must co-operate with this process.

Court encourages advance disclosure of information and to provide written summaries which can be read by the judge (disclosure of electronic data and documents)

PD 5C – the commercial court can be started and continued electronically

CPR 58.1(2)(c) – commercial claim, any claim arising out of transaction of trade and commerce relating to:

1. business doc/contract

2. export/import of goods

3. carriage of goods by land, sea, air, pipeline

4. exploitation of oil, gas, natural resources

5. insurance and re-insurance

6. banking and financial services

7. operation of market and exchanges

8. purchase and sale of commodities

9. construction of ships

10. business Agency

11. arbitration

Apart from arbitration Part 7 claims started using N1(CC) claim form and Part 8 N208(CC) claim form

Transfer:

• Possible from and to. CPR 30.5 app for transfer to/from a specialist list must be made by judge dealing with claims in that list

• judge has virtually unfettered discretion in deciding whether case suitable

• judge can remove claim from court on own initiative or app of another party

• no rigid financial limit, claim 200,000 is likely to be transferred out unless a special commercial interest

• usually will be transferred out to Mercantile courts

How does CPR relate to Commercial court?

Part 58.3 Rules and their practice directions (in cpr) apply to claims in the commercial list unless this part or a practice direction provides otherwise.

CPR

• 15 – Defence and reply

• 20 – Counterclaims and additional claims

• 58 – Commercial court

Commencement of claim in commercial court:

• Commenced by either part 7 (practice form N1(CC)) or part 8 (Practice form N208(cc)) CF (claim form)

Statements of case – guidance set out in part c and appendix 4 of the CCG

• Generally the rules are similar to part 16 of CPR BUT

• para 12 Appendix 4 CCG – evidence SHOULD NOT be included in statement of case

• para C1.1(b) CCG – evidence should be no longer than 25 pages. Court can give permission for longer if good reason to

• PD58 para 9 – commercial court will not serve docs. Service must be effected by the parties

• All docs verified by statement of truth, original text retained and using foot/margin notes. If extensive amendments then docs should be retyped and accompanied by a copy showing where/when amendments made CCG para C5.1(d)

Statements of case and time limits main claim:

• All cases must have a CMC (CCG D1.1)

• If a party has a legal representative, all case management conferences must be attended by such a representative who is familiar with the case and has sufficient authority to deal with any issues that are likely to arise (CPR 29.3(2) CCG D1.4)

• For applying for CMC/when it is see above

Commercial Court Guide (CCG) D2 sets out case management key features:

Identify the documents which the parties are required to prepare in advance of a Cases Management Conference in the Commercial Case:

• Case memorandum

• List of issues

• Case management bundle

• Case management information sheet

• Precedent H budget

CCG: Once defence and reply served, parties’ lawyers should agree this.

Case Memorandum (D5) (joint agreed – claimant responsible):

• Each party prepares a case memorandum and files it at court after service and any reply which should then be drafted as an agreed case memorandum (D5.1)

• Claimant is responsible for preparing and filing the case memorandum (D5.3)

• Case memorandum should be an agreed document (D5.5) which contains (D5.2):

  • short, uncontroversial description of what case is about (each party’s version)

  • short, uncontroversial summary of material procedural history of case

• This is the first doc the commercial court judge looks at

List of Issues (D6) after defence and reply (D6.1)

Exam likely to ask for list of issues but NOT the agrees list – just one party’s point of view

• Identify the important issues of fact and law that are in dispute in the case, and

• specify those issues that are still outstanding.

• it should contain a section listing those matters that are not in dispute between the parties.

• Each party prepares their own, main issues of fact and law. Principle issues in a structured manner, such as by ref to headings or chapters. Long lists of detailed issues should be avoided D6.1

• In most cases parties should be able to agree the list of issues, if this isn’t possible then C must draft and send to D who can provide their own comments or suggests alternative list to court (must send copy to C also) D6.2(c)

• List of issues intended to be a neutral claim, neither party should try to advance their case D6.2(a)

• Separate section should list the common ground

** At CMC, parties must co-operate in keeping both docs up to date

Case Management Bundle (D7) prepared by the Claimant’s solicitor (D7.1)

The documents that go in the Case Management Bundle are prescribed:

• D7.2 – lists everything that should be in the bundle

  • Claim form

  • Statements of case

  • case memorandum,

  • list of issues,

  • case management information sheet and pre-trial timetable (if established)

  • principal orders in the case

  • any agreements relating to disclosure

• Must be lodged 7 days before CMC or earlier and update court bundle as follows (D7.5):

1. Pre-trial timetable, revised case memorandum and other order at CMC within 10 days of CMC

2. Any significant order must be added to case memo within 10 days of making it

3. Replace original statements of case with amended one within 14 days of service

4. If case memo or list of issues revised do so within 10 days

   • Claimant’s solicitor must constantly update the case management bundle as the case progresses (D7.6/ PD58 para 10.9)

Case Management Information Sheet (CMIS)(D8.5)

Each party must file at court and serve on every...