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(6.1) Case management & costs, Identify the normal track for the claim…

- - - - Solicitor-client costs:
        
        They are costs payable by the client to the solicitor under the contract of retainer. Client is primarily responsible for their solicitor's costs
        
        If a party is successful in litigation, its likely to want to seek an order from the court that the other party should pay the legal costs it has incurred, but its likely there'll be a shortfall (which is still payable from the client to its solicitor) between the sum recovered from the other party (by of inter-party costs) and the sum the client has to pay the solicitor as recorded on the solicitor's bill
        
        The indemnity principle provides that a party won't be able to recover a sum in excess of their liability to their own solicitor
      - Inter-party costs:
        
        the 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 (i.e. require a person who is not a party to the proceedings to pay something towards the costs)
        
        Most likely circumstances in which the court will order non-party costs is where there is a 'funder' (who is not a party) who is funding the litigation
        
        Principles to be applied by court when considering whether to make an award of costs against a non-party are as follows:
        
        (1) Cost orders against non-parties are 'exceptional' but the ultimate question the court will ask is whether its just to make the order;
        
        (2) Where the non-party both funds but also substantially controls or at any rate is to benefit from proceedings, justice will ordinarily require that if the proceedings fail the non-=party will part the successful party's costs
    - - (a) Whether costs are payable by 1 party to another - general rule:
        
        Whether costs are payable by 1 party to another is that 'cost follow the event'
        
        Means that the unsuccessful party (the loser) pays the costs of the successful party (i.e. the winner) CPR 44.2(2)(a))
        
        But while cost will normally follow the event, court has complete discretion in this area
        
        It can depart from the general rule and take a number of other factors into account (CPR 44.2(4) and (5) to make a different cost order
        
        Matters it will take into account include:
        
        Parties conduct (including in relation to ADR / offer to settle)
        
        Whether a party has succeeded on only some issues / part of the claim
        
        Example:
        
        Unreasonable refusal to agree to ADR
        
        Although a successful party would generally be awarded its costs, the court can refuse to award those costs if the successful party failed to engage in ADR
        
        But the burden is on the unsuccessful party to show why there should be a departure from the general rule for this particular reason
        
        A finding of an unreasonable refusal does no automatically result in a costs penalty but is simply an aspect of the parties' conduct which needs to be addressed in a wider balancing exercise
      - (b) Amount of of costs payable:
        
        Basis of assessment (CPR 44.3)
        
        When the court makes a costs order it must specify the basis of assessment i.e. general principles to apply in calculating the exact amount of costs. There's 2 bases of assessment:
        
        Standard basis (CPR 44.3(2) and 44.4(1):
        
        The court will allow costs which:
        
        have been proportionately and reasonably incurred; and
        
        are proportionate in amount
        
        Any doubt is resolved in favour of the paying party
        
        It's not uncommon for only 60% of costs to be recovered from the paying party
        
        Indemnity basis (CPR 44.3(3)) and 44.4(1):
        
        The court wll allow costs which:
        
        have been reasonably incurred; and
        
        are reasonably in amount
        
        Any doubt is resolved in favour of the receiving party
        
        Its not uncommon that the receiving party
        
        The court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount
        
        In neither scenario is a a party likely to recover 100% of its costs
        
        What is meant by proportionate:
        
        Where costs are awarded on the standard basis they need to be proportionate
        
        This relates back to the OO which states that litigation must be conducted 'justly and at a proportionate cost'. So what does proportionate mean:
        
        Costs will be proportionate if they bear a reasonable relationship to the following specified criteria:
        
        (a) the sum in issue in the proceedings
        
        (b) the value of any non-monetary relief in issue in the proceedings
        
        (c) the complexity of the litigation
        
        (d) any additional work generated by the conduct of the paying party; and,
        
        (e) any wider factors involved in the proceedings, such as reputation/public importance
        
        Facts to take into account when deciding amount of costs:
        
        Court will take into account all the circumstances of the cases like:
        
        conduct of parties
        
        complexity of the mater
        
        place where circumstances in which the work was done and the receiving party's last approved or agreed budget (CPR 44(3))
        
        Budgets are a part of the court's costs management process
      - (c) Time for complying with an order for costs
        
        Unless the court orders otherwise, a party must comply with an order for the payment of costs within 14 days of:
        
        the date of the judgement or order if it states the amount of costs;
        
        if the amount of those costs (or part of them) is decided later, the date of the certificate which states the amount; or
        
        CPR 44.7
        
        The process of deciding the amount of costs at a later time is called detailed assessment of costs.
- - - - Assessed costs:
        
        Where costs don't fall under the fixed costs regime court must be involved with decision and calculation of the amount payable by way of costs from 1 party to another
        
        Assessment of costs generally only occurs when parties are unable to agree the amount of costs one should pay to the other
        
        There's 2 alternative procedures for assessment: summary and detailed assessment
        
        Summary assessment:
        
        Involves court determining amount payable by way of costs immediately at the end of hearing. To enable court to carry out summary assessment, parties must provide:
        
        statement of costs (preferably on the standard form (N260 (44 PD1.2)) and
        
        file and serve them on each party no less than 24h before the time fixed for the hearing (44 PD 9.5(4)(b))
        
        Court will review these (in a relatively broad brush way) and hear the parties' short submissions in relation to them, and then make a decision as to how much should be paid
        
        contd:
        
        Unless there's a good reason not to do so the court should use this summary assessment procedure:
        
        In fast track cases at the end of trial. In this situation, costs of the whole case will be assessed; and
        
        At the end of a hearing of an interim application or matter which haven't lasted more than a day. In this case only the costs of the interim application will be assessed
        
        Detailed assessment:
        
        Court on deciding that 1 party should pay the other party's costs, orders that they be subject to detailed assessment (if not agreed). ATP, court makes no attempt to set a figure on them
        
        To start the detailed assessment proceedings, receiving party serves a notice of commencement and a copy of its bill of costs (a more detailed statement of costs than used in summary assessment) on the paying party
        
        Points of dispute in relation to any item in the bill of costs should then be served on the receiving party by the paying party within 21 days of service of the notice of commencement
        
        If the parties cannot reach an agreement, receiving party should then file a request for a detailed assessment hearing where costs officer will determine sum to be paid
      - Interaction between the parties' budgets and amount of costs payable:
        
        Any consideration of costs orders made by court must include (where relevant):
        
        the role played by the parties respective budgets and the costs management procedure
        
        budget can have an impact of the assessment of costs, even if a cost management order was not made
- - - - Sanctions imposed by the CPR:
        
        There's also various provisions of the CPR imposing automatic sanctions for default e.g
        
        failures to disclose an expert report prevents a party from using that report at trial 9CPR 35.13) and where failure to file a costs budget will be treated as only filing a costs budget of applicable fees (CPR 3.14)
    - - Sanctions:
        
        Non-compliance with orders imposing sanctions:
        
        If a party fails to comply with a rule, practice direction/court order imposing a sanction, the sanction takes effect unless the party applies for an obtains relief from that sanction (CPR 3.8(1) and 3.9)
    - - cont:
        
        CA took the opportunity to hear 3 appeals concurrently all relating to cases in which one of the parties was seeking relief from sanctions
        
        Court felt that previous case law has been misinterpreted and it set out the approach that should be applied for future cases
        
        Applications for relief from sanctions should be approached in 3 stages
        
        Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 2.9(1). If breach is neither serious/significant, then relief should be granted
        
        If the breach is serious/significant, consider why the default occurred
        
        Having considered the reasons 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 given to the requirements under CPR 3.9
        
        (1)(a) - litigation must be conducted efficiently and at a proportionate cost and
        
        (1)(b) the court must enforce compliance with rules, practice directions and orders
        
        Regarding stage 1:
        
        CA held that a useful test of whether a breach has been serious/significant is - whether it has imperilled future hearing dates or otherwise disrupted the conduct litigation
        
        Lord Dyson also made it clear that assessment of the seriousness or significance of a breach should not involve at the 1st stage:
        
        an assessment of the general conduct of the parties (e.g. if the breach is the latest in a series of failures to comply, this aspect of previous conduct should be left to the 3rd stage)
        
        If the breach is not serious/significant, relief from sanctions will usually be granted and it will not be necessary for the court to spend much time on the 2nd and 3rd stage
        
        Regarding stage 2:
        
        Court declined to give particular examples of good and bad reasons for failure to comply with rules, practice directions or court orders
        
        Regarding stage 3:
        
        There's disagreement between their Lordships regarding this stage.
        
        Majority of the court (Lord Dyson and Vos) think that the 2 factors in CPR 3.9 should be prioritised when the court considers all the circumstances of the case
        
        The other judge (Lord Jackson) disagreed stating that although CPR 3.9 required the court to consider those 2 factors in every case, it did not required prioritisation. Rather, the importance of the 2 factors is a matter for the court having regard to all circumstances
- - - - Small claims track (CPR 27):
        
        Normal track where cases with value no more than 10k and also claims by a tenant of residential premises against a landlord for repairs where neither the repairs nor any claim for damages total more than 10k
        
        There's also a special rule for PI claims
        
        PI claims:
        
        Included in small claims but with the addition of:
        
        (1) road track claims where accident occurred before 21/5/21 or the C is a child/protected party, or the C was riding a motorcycle, the damages for the PU (pain, suffering and loss of amenity) are valued at no more than 1k
        
        (2) in relation to other road traffic claims, the damages for the PI are valued at not more than 5k
        
        (3) in any other PI claim (not road traffic claims), damages for the PI are valued at no more than 1.5k
      - Fast track (CPR 28):
        
        Fast track is a normal track for claims (other than those for which the small claims track is the normal track) up to 25k, provided that:
        
        (a) trial is likely to last longer than 1 day (5 hours); and
        
        (b) there will only be a oral expert evidence from 1 expert per party in each of no more than 2 expert fields (CPR 26.9(6))
      - Intermediate track (CPR 28):
        
        Intermediate track is the normal track for claims (where the case is suitable for neither the small claims nor fast track) up to 100k, provided that:
        
        (a) the trial is likely to last longer than 3 days if managed proportionately; and
        
        (b) oral expert evidence is likely to be limited to 2 experts per party (CPR 26.9(7))
      - Multi-track (CPR 29):
        
        Multi-track is the normal track for all other types of cases (CPR 26.9(10))
    - - Notice of proposed allocation:
        
        On receipt of defence, court officer will provisionally decide the track which appears to be most suitable for the claim and then serve each party a notice of proposed allocation (CPR 26.4(1))
        
        Notice of proposed allocation will indicate which track is proposed for the claim
        
        Will also require parties to:
        
        (1) File and serve a directions questionnaire
        
        (2) On the fast track, intermediate track or multitrack, file proposed directions; and an agreed budget discussion report
        
        Will also state the deadlines for these steps
      - Directions questionnaires:
        
        Information required to enable court to determine which track the case will be allocated to is provided by parties completing the directions questionnaire (DQ) (Form N180 for small claims track N181 for intermediate track and multi-track cases)
        
        DQ contains a number of questions to help court decide which track si most appropriate for the case
      - Pre-action protocol:
        
        Parties must confirm in the DQ whether they have complied with the pre-action protocols
        
        If there's no specific pre-action protocol, then parties are expected to comply with the PD on Pre-Action Conduct
        
        If a party fails to comply with the pre-action protocols they must explain why and there may be sanctions as a result
        
        Settlement:
        
        There's a section in the DQ for parties to request that court stay the proceedings so parties can try to settle. A stay in period of time during which proceedings are paused, and parties are prevented from taking any steps in the proceedings apart from steps allowed by the CPR or the terms of the stay
        
        Legal representatives have to confirm in the DQ that they have explained to their client the need to consider settling the claim and that there could be cost consequences against them if the client unreasonably refuses to try to settle
        
        if all parties request a stay, claim will be stayed for a month (CPR 26.5(2))
        
        In any other circumstances, including if 1 party (but not all parties) request a stay, court can stay the claim if it considers it appropriate (CPR 26.5(3))
        
        Case are usually stayed for 1 month at a time. If cases is not settled at the end of that period and the parties have not applied for an extension of the stay to continue negotiations, case will be referred to a judge for allocation and directions
      - Disclosure:
        
        DQ also asks the parties to provide a lot of case management information as to the future preparation of the case for trial including the extent of disclosure
        
        Disclosure is the stage in proceedings where parties exchange documents.
        
        In most cases this is done by each party serving a list of documents which exist and then the recipient being permitted in inspect or to receive copies of the listed documents (with some exceptions)
        
        Witnesses:
        
        Each party will also need to name the witnesses that it would like to call to trial and detail what it hopes they will help that party to prove.
        
        Its important that there's 'no property in a witness' i.e. there's no rule preventing a party from approaching a witness that it has seen listed in the other party's DQ and seeking their views/assistance
        
        Although there are rules which prohibits any party from putting pressure on a witness to give particular evidence, its advisable therefore to speak to witnesses before you list them in the DQ
        
        Expert evidence:
        
        In a civil claim, judges often have to consider not just legal issues but also scientific, technical, medical or other issues of which they may have no direct experience or knowledge
        
        Judge will be assisted by experts in the relevant area (relating to a medical issue, an expert practitioner)
        
        If your client wishes to rely on expert evidence then it will need court's permission to do so
      - Trial:
        
        Parties are also required to estimate the time needed for the trial and it would be useful to consult counsel at this stage for an accurate estimate. This trial estimate will be included int he directions given by the judge and parties are required to notify the court if there's any change to the estimate given
        
        Costs:
        
        In a multi-track cases which faill within automatic costs management, the parties will need to file a costs budget with the DQ.
        
        Directions:
        
        The DQ also requires parties to attempt to agree directions and to attach them, if the case has been provisionally allocated to the fast, intermediate or multi-track. Proposed directions must be filed with the DQ, whether the parties have managed to reach agreement or not (CPR 26.4(1)(b)(v))
    - - Criteria for allocation:
        
        Court can decide not to allocate a claim to the normal track. The matters the court will consider when deciding to which track a case should be allocated include:
        
        (a) the financial value of the claim;
        
        (b) the nature of the remedy sought;
        
        (c) the likely compexity 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 (court will not aggregate claims but will look at the value of the largest claim);
        
        (f) amount of oral evidence which may be required
        
        (g) importance of the claim to any persons whoa re not parties
        
        (h) the views expressed by the parties; and
        
        i) the circumstances of the parties
      - So the approach to be taken is to:
        
        (a) identify the normal track
        
        (b) decide whether there is a good reason to allocate the claim to a track other than the normal track, taking into account considerations listed immediately above
- - - - Within how many weeks of notice of allocation:
        
        4
        
        10
        
        14
        
        22
        
        30