Please enable JavaScript.
Coggle requires JavaScript to display documents.
CASE AND COSTS MANAGEMENT STAGE - Coggle Diagram
- CASE AND COSTS MANAGEMENT STAGE
Court's general powers
Court’s power to make orders of its own initiative
- Court could provide new directions / terminate a case w/out hearing parties representations = will give parties right to apply to set aside / stay / vary order within a given period
Court’s power to strike outDeletion of written material from statement of case so it cannot be relied on in proceedings by any party (incl deletion of entire statement SO case is over) Can be exercised by court's own initiative / application of party (used sparingly as there are better suitable ways to deal)Grounds:
- The statement of case discloses no reasonable ground for bringing or defending the claim
- The statement of case is an abuse of court’s process / likely to obstruct just disposal of proceedings
- There has been failure to comply with rule, practice direction or court order
IF court makes order the statement of case of party will be struck out if they do not comply with the order + party does not comply = statement of case is struck out + other party can obtain judgment with costs by filing request at court
SANCTIONS
Bad measures for a party to ensure compliance with court rules + ordersRelate to: interest / cost / striking out statements of caseCourt can impose sanctions by court order either:
- immediately OR make an unless order (automatic sanction in event of non-compliance with order)
Time specified by CPR / court order for party to do act may be varied by written agreement of parties, UNLESS rule / practice direction / court provides otherwise
- BUT IF rule, PD or court order requires party to do something w/in specified time + specifies consequence for failure to comply = time for doing act CANNOT be extended by agreement BUT parties can agree an extension of time by prior written agreement for max 28 days if does not put at risk any hearing date
ReliefOn application for relief from sanctions, court will consider:
- litigation to be conducted efficiently + proportionate cost
- to enforce compliance with rules, PD and orders
- supported by evidence
Procedure
- Identify + assess seriousness + significance of failure to comply with relevant rule, practice direction or court order = If breach is not serious / significant > relief should be granted.
- If the breach is serious / significant = why default occurred.
- Having considered reason for default = court evaluates all circumstances of case to ensure it deals with matter justly especially efficiently and at proportionate cost + enforce compliance with rules, practice directions and orders
In-time applications = deadline is looming + party realises it is not going to be able to comply with deadlineApplication to set aside default judgment = treated as application for relief from sanctions
ALLOCATION
Deciding which track claim should be allocated to
Procedure
1. Defence is filed2. Court sends notice of proposed allocation provisionally allocating to track which appears to be most suitable3. Parties file directions questionnaire
- (Form N180 for small claims / Form N181 for fast / intermediate / multi-track)
- Pre-action protocol = parties must confirm whether they complied with pre-action protocols
- Settlement = parties can request court stay proceedings to try to settle (parties request stay > claim will be stayed for a month)
- Disclosure = parties provide case management info as future preparation for trial
- Witness = name witnesses that it would like to call to trial + detail what it hopes they will them prove
- Expert evidence
- Trial = estimate the time
- Costs = multi-track cases within automatic costs management > file a costs budget
- Directions = parties to attempt to agree directions + attach them
- Other matters = court / track / complexity band / any interim applications
4. Allocation (after hearing if necessary)
- Cases allocated to fast / intermediate track = assign complexity band
- Cases allocated to fast / small = gives directions
- Cases allocated to multi / intermediate track = give directions / fix CMC
- Court makes allocation decision + sends notice of allocation to parties + copy of the DQs
1. SMALL CLAIMS TRACK
- Normal track for cases with a value > £10,000Features
- very limited fixed costs recovery = court rarely orders party to pay costs to other
- few formalities = informal hearings / parties represent themselves
ABBREVIATED DIRECTIONS
- Parties file + serve on every other party copies of documents they rely upon no later than 14 days before main hearing
- Original documents brought to hearing
- Notice of hearing date (at least 21 days') + time allowed for hearing
- Court must be informed if parties agree to settle
Personal injury claimsNormal track for PI claim > £10,000 AND
- road traffic claims before 31 May 2021 / claimant is child or protected party / claimant was riding a motorcycle = damages for personal injuries are > £1,000
- other road traffic claims = damages = > £5,000
- other PI claim = damages are > £1,500.
2. FAST TRACK
Normal track for claims up to £25,000, provided that:
- trial is likely to last no longer than 1 day (five hours) AND
- ONLY oral expert evidence from 1 expert per party (MAX 2 expert fields)
Usually held in County Court
DirectionsCourt will give directions on basis of DQ OR hold hearingStandard directions
- Disclosure = w/in 4 weeks of notice of allocation
- Exchange of witness statements = w/in 10 weeks of notice of allocation
- Exchange of experts' reports = w/in 14 weeks of notice of allocation
- Filing pre-trial checklists at court = w/in 22 weeks of notice of allocation
- Trial date / period fixed or trial = w/in 30 weeks of notice of allocation
- whether to order or encourage the parties to engage in alternative dispute resolution
Complexity bands
Fast track claims are assigned to complexity band to determine level of (fixed) costs recoverable by Claimant at end of case
Complexity band 1
- road traffic accident related, non-personal injury claims
- defended debt claims
Complexity band 2
- road traffic accident related, personal injury claims which are / should have been started under the RTA Protocol
- personal injury claims to which the Pre-action Protocol for Resolution of Package Travel Claims apply
Complexity band 3
- road traffic accident related, personal injury claims to which the RTA Protocol does not apply
- possession claims
- housing disrepair claims
- other money claims
Complexity band 4
- employer’s liability disease claims (other than claim for noise induced hearing loss)
- complex possession and housing disrepair claims
- property and building disputes
- professional negligence claims
- any claim which would normally be allocated to the fast track, but is nonetheless complex
3. INTERMEDIATE TRACK
Normal track for claims up to £100,000, provided that:
- trial is likely to last no longer than 3 days if managed proportionately AND
- oral expert evidence is likely limited to 2 experts per party
Additional points
- Total length of permitted witness statements + summaries is limited to 30 pages + experts reports to 20 pages
- Applies to cases issued on / after 1 October 2023
- Directions: whether to order or encourage the parties to engage in alternative dispute resolution
- No additional factors make claim inappropriate for the intermediate track: brought by single claimant against 1 / 2 defendants OR by 2 claimants against a single defendant (maximum of 3 parties)
- The parties must endeavour to agree appropriate directions + submit them to court 7 days in advance of the CMC
- Trial should take place w/in 30 weeks of allocation
- Judges retain discretion to allocate more complex cases > £100,000 to the multi-track
Complexity bands
Intermediate track claims are assigned to complexity band to determine level of (fixed) costs recoverable by Claimant at end of case
Complexity band 1
- only one issue is in dispute AND
- trial is not expected to last longer than 1 day (including personal injury claims where liability or quantum is not in dispute / road traffic accident related, non-personal injury claims / defended debt claims)
Complexity band 2
- Any less complex claim where < 1 issue is in dispute, including personal injury accident claims where liability and quantum are in dispute
Complexity band 3
- Any more complex claim where < 1 issue is in dispute BUT unsuitable for assignment to complexity band 2, including noise induced hearing loss + other employer’s liability disease claims.
Complexity band 4
- Any claim which would normally be allocated to intermediate track BUT unsuitable for assignment to complexity bands 1 to 3, including any personal injury claim where there are serious issues of fact or law.
4. MULTI-TRACK
Normal track for all other types of caseCover range of cases from simple disputes < £100,000 to millions of poundsIF allocated to multi track court will give directions OR convene case management conference (CMC)When giving directions, the court must now consider whether to order or encourage the parties to engage in alternative dispute resolution
- IF court is to give directions on its own initiative without holding a case management conference +not aware of any steps taken by the parties other than the exchange of statements of case = general approach will be as the court thinks appropriate + court may give directions ordering or encouraging the parties to engage in alternative dispute resolution, with examples provided.
Case management conference (CMC)Directions hearing + ensures that real issues between parties are identified + understood by parties / court, such as
- suitability of the case for settlement
- position parties have reached
- steps parties have taken
- compliance with previous directions / orders
- estimated costs
- future steps
Attended by legal representative who is familiar with the case + have sufficient authority to deal with any issues likely to arise
Procedure1. Disclosure report
- Parties must produce a disclosure report not less than 14 days before first CMC (unless PI claim)
- Details docs in existence
- Using N263 OR Electronic Documents Questionnaire (EDQ) N264
2. Draft directions
- Parties are under express obligation to try to agree directions at 7 seven days before any CMC
- If AGREE directions for future management of case = case is cancelled
- If NOT AGREE directions = CMC used for court to give directions
3. Applications if necessary
- Parties required to consider if case summary will be useful at CMC detailing chronology of claim / factual issues agreed and in dispute / nature of the evidence needed
- IF needed application made ASAP
4. CMC5. Directions as result of CMC
COSTS
Court's jurisdiction to order costs
- Court has full power to determine by whom + extent of costs to be paid
- Costs order may be made at end of any interim hearing as well as at end of trial
- IF NO order = each party pays its own costs
Different types of litigation costs
- Solicitor-client costs = payable by client to solicitor (could be paid by other party if they win)
- Inter-party costs = actual costs awarded by court that 1 party has to pay the other
- Non-party costs = to non-party who is funding the litigation BUT must be just to make order + if fail non-party will pay successful party's costs
Inter-party costsWhen determining costs the court has discretion as to:1. Whether costs are payable by one party to another
- Costs follow the event = loser pays winner
- BUT court has discretion to depart from general rule by considering: parties' conduct + if party has succeeded on only some issues / part of claim
2. Amount of costs payable
- Calculated by basis of assessment:
- Standard (usually 60%): court will allow costs which have been proportionately and reasonably incurred + are proportionate and reasonable in amount + doubt is resolved in favour of the paying party
- Indemnity (usually 70-80%): court will allow costs which have been reasonably incurred + are reasonable in amount
Proportionate = have reasonable relationship to: sums in issue / value of any non-monetary relief in issue / complexity / additional work /wider factors3. Time for complying with an order for costs
Unless court orders otherwise, party must comply with order for payment of costs w/in 14 days of:
- date of judgment / order if it states amount of costs
- if amount of costs (or part of them) is decided later, date of certificate which states amount
- either case, date court may specify
Qualified one way costs shifting (QOCS)
- Regime for recovery of costs between parties in proceedings involving claims for damages in respect of death / personal injury
- IF it applies:
- if claimant wins case / aspect of it = recover + enforce costs orders obtained in usual way AND
- if claimant loses case / aspect = costs orders against them cannot be enforced except up to the level of damages and interest awarded to the claimant (£0 as they lost)
- Orders for costs against claimant ONLY enforced after proceedings have been concluded + costs have been assessed or agreed
Exceptions to the QOCS regime
Allow enforcement of costs orders against claimant w/out permission of court if claim is on balance of probabilities 'fundamentally dishonest:
- claimant has disclosed no reasonable grounds for bringing claim
- proceedings are abuse of courts' process
- conduct of claimant / someone on their behalf is likely to obstruct the just disposal of proceedings
COSTS PROCEDURE
Fixed costs
From 1 October 2023 = fixed costs apply to small claims / fast / intermediate track cases
Assessed costsONLY occurs when parties are unable to agree amount of costs one should pay to the other so court needs to be involvedBasis of assessment
- Standard and indemnity basis BUT also summary and detailed assessment
1. Summary assessment
- Court determines amount payable by way of costs immediately at the end of hearing
- Parties must prepare statements of costs on standard form N260 + file and serve them on each party not less than 24 hours before time fixed for hearing
- Used in fast track cases at end of trial AND end of a hearing of interim application which has not lasted more than a day
2. Detailed assessment
- Court decides 1 party should pay the other's costs + they be subject to detailed assessment
- Receiving party serves a notice of commencement + copy of its bill of costs on paying party
-Paying party serves points of dispute w/in 21 days of service of notice of commencement
- If parties cannot agree = receiving party files request for detailed assessment hearing where court will determine sum to be paid considering parties' respective budgets + costs management procedure
INTERIM COSTS
Costs order at end of any interim hearingTypes of interim costs order
- Costs in any event = party in whose favour order is made is awarded its costs of interim hearing from other regardless of who wins
- Costs in the case = party who gets its costs at trial (usually the winner) will recover costs of interim hearing from other
- Costs reserved = decision about who pays costs of interim hearing is put off to a later occasion
- Claimant or defendant's costs in the case = IF claimant is successful + receives an order of entitlement to its costs at end of trial = can include costs of interim application. IF defendant is awarded costs at trial = claimant does not have to pay defendant's costs of interim application
- Costs thrown away = IF judgment / order is set aside, party in favour of costs order = entitled to costs incurred due to judgment / order being set aside > can include the hearing
- Costs of and caused by = party must pay costs resulting from something that party has done
- Costs here and below = party in whose favour costs order is made = entitled costs of the proceedings in court that makes order + costs of proceedings in any lower court
- No order for costs = Each party will bear its own costs
COSTS MANAGEMENT
Costs management regime applies to all cases EXCEPT:
- Small claims / fast / intermediate track claims
- Claims commenced on / after 22 April 2014 where amount stated on claim form £10 million or more.
- Claims commenced on / after 22 April 2014 which for monetary claim which is NOT quantified / fully quantified / non-monetary claim valued at £10 million or more on claim form
- Claims commenced after 6 April 2016 made by / on behalf of person > 18.
- Claims that are the subject of fixed costs or scale costs
Court can also disapply costs management regime even when it would normally apply
Procedure1. Filing and exchanging costs budgetsEstimate of reasonable / proportionate costs party intends to incur
- Parties should prepare the budgets on Precedent H not considering what solicitor will charge them
- IF monetary value > £50,000 OR party's budgeted costs > £25,000 = parties only use first page of Precedent H
- Includes future costs
- IF monetary value > £50,000 - filed with DQ BUT if more = filed 21 days before the first CMC
2. Budget discussion reports
- Once filed + exchanged = discuss budgets with each other
- The parties indicate figures which are agreed / not agreed for each phase of litigation + brief summary of the grounds of dispute
- Filed + exchanged w/in 7 days of first CMC
3. Costs management conference
- Court considers parties' budgets + budget discussion reports and there are 2 options:
a. Case management decisions = regards available costs budgets + costs involved in each procedural step of the litigationb. Costs management orders = record extent costs budgets are agreed between parties OR is not agreed the court will approve one which is reasonable + proportionate + not greater than what incurred
- IF NO CMO = If there is difference of 20% or more between costs claimed by receiving party on detailed assessment + costs in budget = receiving party provides statement of reasons for difference + court may reduce recoverable sum
Problems with budgets
- Significant developments in litigation warranting revision to budget: amended budget should be submitted to the other parties for agreement if possible AND to court for consideration
- Failure to file a budget = treated as having filed costs budget comprising of only = applicable court fees unless the court otherwise orders