Case management — overviewScope of case management practice notes

The court’s case management rules and powers can vary between courts. It is important to check the case management rules and procedures for the court in which your proceedings have been issued.

Court's case management powers

The court's aim is to ensure that cases are dealt with justly - in other words, in accordance with the overriding objective. It can take any step for the purpose of managing the case and furthering that objective. The court's case management powers are set out in CPR 3.1(2). The key ones are:

• changing the time for compliance with a court order or rule

• adjourning proceedings

• staying proceedings

• striking out a claim

Sanctions will apply automatically where a party fails to comply with a rule, practice direction or court order unless that party applies for relief. In considering whether or not to grant relief, the court will consider the list of criteria set out in CPR 3.9.

Allocation

All claims are allocated to one of three tracks:

• small claims track (claims of up to £5,000, personal injury claims of up to £1,000)

• the fast track (claims of more than £5,000 but less than £25,000), or

• the multi-track (claims of more than £25,000)

The court will determine which track is appropriate for the case on the basis of Allocation Questionnaires completed by all parties to the action after all defences have been filed. While the financial value of the claim is the court's starting point for the selection of the track, it will also take into account factors such as the nature of the remedy sought and the complexity of the facts, law or evidence.

Small claims — case management

Claims on the small claims track are known as small claims. Parties often act in person and, as such, case management is focused on them. Many of the parts of the CPR do not apply, specifically the rules on evidence, disclosure and Part 36 offers. Claims involving dishonesty, whatever their value, will not be allocated to the small claims track.

Only very limited costs are recoverable on the small claims track. These include court fees and experts' fees up to a limit of £200.

After allocation, the court will normally give directions, including the date for the final hearing. The hearing itself is usually informal and the normal rules of evidence do not apply; the court can adopt any procedure it believes will best dispose of the dispute.

CPR Part 27 and its practice direction govern procedure on the small claims track.

Fast track — case management

Fast track claims are characterised by standard directions and a period of not more than 30 weeks between directions being given and trial. Parties can agree changes to most directions but must seek permission from the court in certain circumstances.

Fast track trials generally last no longer than one day and there are limits on the costs counsel can recover.

CPR Part 28 and its practice direction govern procedure on the fast track.

Multi-track — case management

If the multi-track claim is heard in the High Court, it will proceed in one of the High Court Divisions. Specialist courts exist within those divisions to hear specific types of cases (for example, the Technology and Construction Court is part of the Queen's Bench Division). Many of these divisions and courts publish their own guides setting out how the court will manage the claim.

The directions will be tailored to fit the type of the claim. The general order of events is as follows:

• case management conference (including giving directions)

• assignment of judge

• following directions (disclosure, exchange of witness statements, exchange of expert reports)

• pre-trial review

• trial

CPR Part 29 and its practice direction govern procedure on the fast track.

Multi-track — case management conferences

In most multi-track cases, the court will hold a CMC to decide how the claim will be managed. CMCs with a time estimate of less than an hour in a district registry or county court will be dealt with by telephone. Matters to be covered at the CMC are:

• reviewing of the progress of any directions given so far

• giving directions about future steps

• hearing any applications

The court may order that a case summary be drafted by the claimant and agreed with the other parties in advance of the CMC. This is designed to assist the court in understanding and dealing with the questions before it.

The parties' legal representatives must attend the CMC, together with counsel, if instructed.

Case management in the Commercial Court

The Commercial Court is a specialist court within the Queen's Bench Division. All cases in the Commercial Court are treated as multi-track cases but only certain parts of CPR Part 29 apply. Key features of case management in this court are:

• statements of case exchanged within fixed periods

• a case memorandum, list of issues and case management bundle must be produced at the start of the case and maintained by the parties throughout the life of the claim

• a mandatory case management conference will be held at which the requirements of the case will be discussed with counsel and a timetable for directions agreed

• a progress monitoring date is the point at which the court considers whether or not the directions have been complied with. Prior to that date, the parties must provide information to the court on the status of the directions and whether or not they are ready for trial

CPR 58, CPR PD 58 and the Admiralty and Commercial Courts Guide governs case management in the Commercial Court.

Case management conferences in the Commercial Court

It is the claimant's responsibility to apply for a CMC. Often counsels' clerks will make the application and fix the date. Most conferences are conducted by way of an oral hearing at court but paper applications are possible where the case is 'out of the ordinary'; possibly those that do not rely on expert evidence or where the parties can agree on the directions sought.

The following documents must be filed in advance of the CMC:

• 14 days in advance - agenda

• 7 days in advance:

• • list of issues

  • case management information sheet

  • case memorandum

  • case management bundle

  • costs update

• 24 hours in advance - statement of costs (where an application is being heard)

Clients are not required to attend the CMC but solicitors and counsel must attend.

Commercial Court – list of issues

Following service of the defence and reply (if any) each party must produce to the court a draft list of issues identifying what is common ground between the parties. This draft needs to be provided to the court prior to the first Case Management Conference. It is important to be aware of not only the requirement for this document which is pivotal to the court’s case management of the case but also the information that should be provided within it. Information in relation to the List of Issues is set out in the Admiralty and Commercial Court Guide at section D6.

Transferring proceedings

In transferring a claim between courts, the court will take into account:

• the financial value of the claim

• convenience of hearings

• availability of judges to deal with the type of claim

• level of complexity of matters

• public importance of outcome

• facilities available at the court

• possibility that a declaration of incompatibility under the Human Rights Act may arise

• in the case of civil proceedings by or against the Crown: the location of the government department and also any relevant public interest that the matter should be tried in London

Some claims will be automatically transferred to the defendant's home town eg where the defendant is an individual.

Specialist courts have their own criteria for transfer.

Adding and substituting parties

A party may be added if it is desirable to resolve all the issues in the dispute or an issue between an existing party and the new party that is connected to the dispute.

A party will be substituted if the existing party's liability has passed to the new party and it is desirable to resolve all the issues in the dispute.

A party will generally only be added or substituted outside the limitation period where that period had not expired when the claim form was issued and the addition or substitution is necessary.

Change of solicitor

Where a party changes solicitor, the former solicitor's address remains as the address for service for that party until a notice of change is filed and served or the court makes an order that the solicitor has ceased to act.

A party can also apply for an order that another party's solicitor ceases to act.

Discontinuance

Only a claimant can discontinue an action. This may be because:

• facts have come to light meaning that the claimant cannot prove the claim (perhaps a 'smoking gun' has been found)

• the claimant may not wish certain facts to come to light at trial for commercial reasons

• the defendant has a knock-out defence

• the claimant has no further funds to fight the claim

In certain circumstances the court's permission will be needed to discontinue.

Discontinuance will take effect:

• when the Notice of Discontinuance is served (where permission is not needed), or

• when the court makes the order (where permission is needed)

Costs of discontinuing a claim: the general rule

The general presumption is that the claimant is liable for the defendant's costs up to the date on which the Notice of Discontinuance is served. Such costs will be on a standard basis. However, that presumption may be disapplied in certain circumstances; the onus is on the claimant to show that it should be. It is important to be aware of the factors the courts have stated will not be regarded as displacing the presumption.

If the presumption is disapplied the defendant will be ordered to pay the claimant's costs. In some instances, the courts have held that the claimant should only pay a proportion of the defendant's costs.

Specific rules apply where the claimant discontinues part of the claim or discontinues a claim against one of a number of defendants.

Costs of discontinuing a claim: displacing the presumption

The general presumption is that the claimant is liable for the defendant's costs up to the date on which the Notice of Discontinuance is served. Such costs will be on a standard basis. However, that presumption may be disapplied in certain circumstances; the onus is on the claimant to show that it should be. It is important to be aware of the factors the courts have stated will not be regarded as displacing the presumption.

Derivative actions

Derivative actions can be brought by shareholders against a director for breach of the duty to exercise reasonable care, skill and diligence, even if the director has not benefited personally. It is not necessary for the claimant to show that the directors in breach control a majority of the company’s shares.

The procedure is set out in CPR 19.9 - CPR 19.9F.

European small claims procedure

EC Regulation 861/2007 sets out the procedure for pursuing cross-border claims for EUR2000 or less. The procedure cannot be used in all disputes. The Civil Procedure Rules sets out the procedure for making the application to the court. The dispute will be dealt with without a hearing if possible. The court's judgment will be enforceable subject to any appeal.

Transcripts - High Court

It should be possible to obtain a transcript of any hearing in open court by appointing a transcriber and completing the relevant form. It is also possible to arrange for 'live' or 'real time' recordings of court hearings though these must be arranged in advance of the hearings.

Changes to the CPR in force 1 October 2009

A raft of amendments to the CPR came into force on 1 October 2009. They include changes to the rules and practice directions on:

• experts:

• • SJEs

  • experts' reports

  • experts' meetings

• costs:

• • recovery of certain sums as an additional liability

  • providing information about funding arrangements

  • costs only proceedings - recovery of insurance premium in publication cases

  • pilot scheme - costs management in defamation actions

• intellectual property claims

• references to the European Court

The rules have also been changed to reflect the implementation of the remaining sections of the Companies Act 2006 and the replacement of the House of Lords' judicial function with the new Supreme Court.

We have published a new practice note on the changes which can be accessed under the KnowHow tab in this topic.