Please enable JavaScript.
Coggle requires JavaScript to display documents.
5. Case management and costs - Coggle Diagram
5. Case management and costs
Case management powers and striking out
CPR 3.1(2) - court powers to manage:
extend/shorten the time for compliance with any rule, PD or court order;
adjourn hearings or bring them forward;
require a party of their legal representative to attend court;
stay the whole or part of the proceedings or judgment either generally or until a specified event; and
order any party to file and serve a costs budget.
General provision - allows court to take any other step or make any order for the purpose of managing case and further overriding objective (CPR 3.1(2)(m).
Court's power to make an order of its own initiative (CPR 3.3) means that, without either party taking a step, the court could provide new directions/terminate a case.
Court's power to strike out
Strike out:
deletion of written material from a statement of case so it can't be relied on in proceedings.
Court may exercise its power to strike out the whole or part of statement of case
(CPR 3.4)
of its
own initiative
or on
the application of a party.
should be made ASAP and before allocation.
used sparingly by courts.
Grounds for strike out (CPR 3.4(2))
statement of case discloses no reasonable ground for bringing or defending the claim
the statement of case is an abuse of the court's process or likely to obstruct justice
a failure to comply with a rule, PD or court order.
Judgment after strike out
Where court makes an order which includes a term that the statement of case of a party will be struck out if the party does not comply with the order, and the party doesn't comply and so statement of case is struck out, the other party can generally obtain judgment with costs by filing a simple request at court.
Costs
Court's jurisdiction to order costs
court has full power to determine costs of proceedings to be paid.
court will consider making a costs order at the end of any interim hearing as well as at the end of trial.
if the judge doesn't make an order to costs, each party will simply pay its own costs.
*Different types of litigation costs
solicitor-client costs
costs payable by the client under contract.
if party is successful in litigation, it will want to seek an order from the court that the other should pay legal cost.
indemnity principle provides that a party will not be able to recover a sum in excess of their liability to own solicitor.
inter-party costs
term used for the actual figure for costs awarded by the court which one party has to pay the other party.
non-party costs
court has jurisdiction to award costs against a non-party.
likely where there is a 'funder' who isn't a party but funding the litigation.
General rule
court has discretion:
Whether costs are payable by one party to another;
The amount of those costs; and
When they are to be paid.
CPR 44.2(1)
Whether costs are payable by one party to another - the general rule
'costs follow the event' - unsuccessful party pays the costs of the winner (CPR 44.2(2)(a)).
BUT
Court has discretion and can depart from the general rule and take other factors into account (CPR 44.2(4) and (5) to make a different costs order:
parties' conduct (including ADR and offers to settle)
whether a party has succeeded on some or part of the claims
Basis of assessment (CPR 44.3)
When court makes a costs order, it must specify the basis of assessments in the general principles to apply to calculate exact costs:
Standard basis (CPR 44.3(2) and 44.4(1)
court will allow costs which:
have been proportionately and reasonably incurred;
are proportionate and reasonable in amount.
Any doubt is resolved in favour of the paying party.
Indemnity basis (CPR 44.3(3) and 44.4(1))
Court will allow costs which:
have been reasonably incurred; and
are reasonable in amount.
Any doubt is resolved in favour of the receiving party
The court will not allow costs which have been unreasonably incurred or are unreasonable in amount.
Recoverable costs?
Standard - only 60% of costs to be recovered from paying party.
Indemnity - receiving party will receive 70-80% of its legal costs from the paying party.
Neither scenario will a party recover 100% of its costs
Proportionate?
Costs will be
proportionate
if they bear a reasonable relationship to the following criteria (CPR 44.3(5)):
sums in issue in the proceedings;
the value of any non-monetary relief in issue in the proceedings;
complexity of litigation;
any additional work generated by the conduct of the paying party; and
any wider factors involved in the proceedings, such as reputation or public importance.
Timeline
Unless court orders otherwise, party must comply with an order for payment of costs
within 14 days of:
date of judgment or order if it states the amount of costs;
the amount of those costs (or party of them) is decided later, the date of the certificate which states the amount; or
(CPR 44.7)
Qualified one way costs shifting (QOCS)
regime for recovering costs between parties in proceedings involving claims for damages in respect of death and PI (CPR 44.13).
restricts defendant's ability to enforce a costs order against the claimant.
Procedure
Court has to decide 'how much' and this is governed by the
'fixed costs'
rules (CPR 45).
1 October 2023: fixed costs now apply to
all
small claims (CPR 27.14), fast and intermediate track cases (section VI and VII CPR 45).
Fast and intermediate track
- 4 complexity bands (CPR 26.15 and 16) - case will be assigned to a complexity band.
Assigned costs
occurs when the parties are unable to agree the amount of costs one should pay to the other.
1. Summary assessment
court determines the amount payable by way of costs immediately at the end of a hearing.
parties must prepare a statement of costs on standard form N260 (44 PD 1.2), file and serve them not less than 24 hours before time fixed for the hearing (44 PD 9.5(4)(b).
Unless there's a good reason not to, the court should use the summary assessment procedure:
in fast track cases at end of trial; and
at the end of a hearing of an interim application which hasn't lasted more than a day.
2. Detailed assessment
the court orders that the party to pay the costs be subject to detailed assessment.
receiving party serves a notice of commencement and copy of its bill of costs on the paying party.
-points of dispute should then be served on the receiving party within 21 days of service of the notice of the commencement.
if the parties can't agree, the receiving party should then file a request for detailed assessment where a costs officer will decide amount.
Types of interim costs order
44 PD 4.2
Costs in any event (and summary assessment of costs) -
the party in whose favour this order is made is awarded its costs of the interim hearing regardless of who eventually wins.
Costs in the case -
the party who eventually gets its costs at trial (usually the winner) will recover its costs of the interim hearing from the party who wins at trial.
Costs reserved -
the decision about who pays the costs of the interim hearing is put off to a later occasion. If no decision is made, then costs will be in the case.
Claimant or defendant's costs in the case -
if the claimant is successful and receives an order, it should be entitled to costs at end of trial, it can include interim application costs. Same for defendant vice versa.
Costs thrown away -
if set aside, party in favour of cost order is made entitled to costs. Could include the hearing. Rationale is that order should never have been made so the party at fault should be punished by paying costs and setting aside.
Costs of and caused by -
party must pay the costs resulting from something the party has done - costs incurred by the defendant resulting from a claimant amending its particulars.
Costs here and below -
party in favour the costs order is entitled to that party's costs but the costs at the lower court. In case of an appeal, party is not entitled to any below Divisional court.
No order for costs (or if no order is made) -
each party will bear its own costs of this hearing.
Sanctions and relief from sanctions
Sanctions are measures which are bad for a party and aim to ensure compliance with court rules and orders
Examples:
Interest
Costs
Striking out a statement of case
Court's power to impose sanctions
may impose a sanction immediately; or
make an 'unless order'. This is an order which provides for an automatic sanction where non-compliance with the order. It must specify
date and time
within which the act must be done (CPR 2.9).
Sanctions imposed by the CPR
failure to disclose an expert report prevents a party from using that report at trial (CPR 35.13)
failure to file a costs budget will be treated as only filing a costs budget of applicable fees (CPR 3.13)
If a party fails to comply with a rule, practice direction or court order imposing a sanction, the sanction takes effect unless the parties applies for and obtains relief from that sanction (CPR 3.8(1) and 3.9)
.
Time limits
General rule: time specified by a CPR or court order for a party to do any act may be varied by the written agreement of the parties, unless a rule or PD provides otherwise or the court orders otherwise.
Exceptions:
requires a party to do something within a specified time;
specifies the consequence for failure to comply.
The time for doing the act may not be extended by agreement except that the parties can agree an extension
prior written agreement
for a max of
28 days
provided this doesn't put the hearing date at risk and unless the court orders otherwise.
Relief from sanctions:
Court will consider all the circumstances of the case, so as to enable it to deal justly with the application (CPR 3.9(1)).
for litigation to be concluded efficiently and at proportionate cost
enforce compliance with rules, practice directions and orders.
Denton and others v TH White Ltd and another, Decadent Vapours Ltd v Bevan and others and Utilise TDS Limited v Davies and others (2014)
Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1)
If the breach is neither serious nor significant, then relief should be granted
If the breach is serious or significant,
consider why the default occurred
Having considered the reason for the default, the court should then evaluate all the circumstances of the case
to ensure that the court deals with the matter justly, but with particular weight to be given to requirements under CPR 3.9 that (1)(a) litigation must be conducted efficiently and at proportionate cost and (1(b) the court must enforce compliance with rules, practice directions and orders.
In-time applications
The rules about relief from sanctions apply when a deadline has passed and the application is made
after
the deadline.
In-time application - where a party realises that it's not going to meet the deadline.
Allocation to track
Decides which 'track' a claim should be allocated to.
PI:
Small claims - if value isn't more than £10k AND
road traffic claims before 31 May 2021, or the claimant is a child/protected party, or the claimant was riding a motorcycle, the damages for the PI are valued at no more than £
1k
In relation to other road traffic claims, damages for PI are valued at not more than
£5k
IN ANY OTHER PI claims, damages for the PI are valued at not more than
£1.5k
Court officer will
provisionally
decide the track which appears most suitable and then serve each party a notice of proposed allocation (CPR 26.4(1)).
Requires the parties to:
file and serve a directions questionnaire;
fast track, intermediate or multi track, file proposed directions; and
claims under cost management regime, file and serve a costs budget and an agreed budget discussion report.
Small claims track (CPR 27)
normal track for cases with a value of not more than £10k and also claims by a tenant of residential premises where damages don't total more than £1k.
Fast track (CPR 28)
for claims up to £25k provided that:
Trial lasts no longer than 1 day (5 hours); and
There will only be
oral
expert evidence from one expert per party in each of no more than 2 expert fields (CPR 26.9(6)).
Intermediate track (CPR 28)
for claims up to £100k:
Trial is likely to last no longer than 3 days; and
oral expert evidence is likely to be limited to 2 experts per party.
Multi-track (CPR 29)
normal for all other types of case (CPR 26.9(10)).
Directions questionnaire
information required to enable the court to determine which track the case will be allocated to - by completing the questionnaire (
Form N180 for small claims and N181 for fast, intermediate and multi-track cases)
Requires info on:
Pre-action
Settlement
Disclosure
Witnesses
Expert evidence
Trial
Costs
Directions
Criteria for allocation
Court can decide not to allocate a claim to the normal track and will consider the following:
the financial value of the claim;
nature of the remedy sought;
likely complexity of the facts, law or evidence;
number of parties or likely parties;
value of any counterclaim or other Part 20 claim;
amount of oral evidence which may be required;
importance of the claim to any persons who are not parties;
views expressed by the parties; and
circumstances of the parties.
Case management conference (CMC)
intended to ensure the real issues between the parties are understood between parties and the court and narrow down issues before trial.
Whether the claim is clear;
Whether any statements of case need to be amended;
What disclosure is required, if any;
What expert evidence is required, and how it should be obtained;
What factual evidence (eg witness statements) should be provided for;
Whether any further information is required; and
Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.
29 PD 5.3
Any legal representative attending a CMC must
Be familiar with the case
Have sufficient authority to deal with any issues likely to arise, like discussing directions/identifying issues.
CPR 29.3(2)
Scope of the costs management regime
By default, the costs regime applies to all cases except the following (CPR 3.12):
Small claims track, fast track or intermediate track claims
claims commenced on or after 22 April 2014 where amount of money claimed on claim form is £10m+
claims commenced on or after 22 April 2014 which are for monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and the claim form states the claim is valued at £10m+
claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18
claims that are the subject of fixed costs or scale costs.
Filing and exchanging costs budget
When to file
CPR 3.13(1)(b)
Stated value of the claim is less than £50k - with the parties' directions questionnaires
any other case - 21 days before the first CMC
Precedent H (3D PD 4)
- requires practitioners to set out any assumptions on which the budget is based and any possible contingencies. Must be signed with its own form of statement of truth.
If the party's budgeted costs don't exceed £25k, the parties must only use the first page of Precedent H (3D PD 4(b)).
about future costs
incurred costs are included on Precedent H, but can't be altered by the court and the rule that a party will only recover budgeted costs unless there is a good reason does not apply to costs incurred prior to the production of the costs budget (CPR 3.18(b)).
Precedent R
must file and exchange budget discussion reports no later than
7 days before the first CMC (CPR 3.13(2)).
Budget discussion report, the parties indicate:
the figures which are agreed and not agreed for each phase of the litigation; and
a brief summary of the grounds of dispute.
Consequences:
1, Case management decisions
when the court is making any case management decisions. it's to have regard to any available costs budgets and the cost involved in each procedural step of the litigation (CPR 3.17).
Costs management orders
court may make a CMO and consider whether the budgeted costs fall within the range of reasonable and proportionate costs, then the CMO will:
1 record the extent to which the costs budgets are agreed between the parties.
2 where the figures are not agreed, record the court's approval of a costs budget after making approproate revisions.
Assessment if no costs management order
if no CMO is made, the position is 'less strict'.
if there's a difference of 20% or more between the costs claimed by a receiving party on detailed assessment and the costs shown in budget filed by that party, the receiving party must provide a statement of reasons for the difference and court may reduce the sum if the paying party reasonably relied on the budget.
Failure to file a budget
automatically treated as having filed a cost budget comprising of only the applicable court fees unless the court orders otherwise (CPR 3.14).