Commercial Court, Part 20 Claims and Case Management PDF

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Commercial Dispute Resolution, Workshop 8 - Commercial Court, Part 20 Claims and Case Management iTutorial Notes - Case Management in the Commercial Court The Commercial Court is subject to the Civil Procedure Rules (CPR) in the same way as other civil courts. It will seek to give effect to the overriding objective in CPR Part 1 when conducting case management, and aim to deal with cases justly and at proportionate cost. As in CPR Part 3, the court will be able to exercise all powers of case management; the Commercial Court has its own special rules for case management under CPR Part 59 and its Practice Direction.  Commercial Court also has its own separate guide - Admiralty and Commercial Court Guide (CCG) o Section D2 lists key features of case management Differences in Managing Claims in Commercial Court and Queen’s Bench Division + Explanations  Allocation and Directions Questionnaires o All claims in the CC are allocated to multi-track  If claim is less than £10m, cost management provisions in CPR Part 3 will apply and costs budgeting will be considered at the first CMC o In CC, parties do not have to complete the DQ, instead much prepare other documents early in case (eg. case memorandum, list of issues and case management information sheet)  Case Memorandum - claimant is responsible for preparing and filing the case memorandum [D5.3]; it should contain a short and uncontroversial description of what the case is about and a short and uncontroversial summary of the procedural history of the case [D5.2]; and the parties must endeavor to agree the wording of the case memorandum [D5.5]  Purpose is to enable judge to understand broadly what the case is about  If claimant and defendant cannot agree, then claimant’s solicitor must draft the document and defendant’s solicitor may provide separate comments to the court  List of Issues - should contain issues of both fact and law [D6.1]; should contain both issues in dispute between the parties and a section setting out the common ground between the parties [D6.1]; and it is the parties’ joint responsibility, but the claimant must draft it if agreement proves impossible [C6.2]  This identifies important issues that are in dispute and specify issues that are outstanding  If agreement cannot be reached and claimant’s solicitor drafts, defendant may provide separate comments to the court  List will be refined and added to during the course of the CMC (can be changed later)  Case Management Information Sheet - each party must produce a separate case management information sheet [D8.5]; there is a standard form for the case management information sheet [D8.5]; and it must be filed at least 7 days before the CMC [D8.6]  Standard format at Appendix 6 of CCG (16 questions)  If parties want to make application not covered by the 16 questions, parties must issue and serve application notice in time for the application to be heard at the CMC  Case Management Bundle - all documents that must go in the bundle are prescribed by the CCG [D7.2]; it must be lodged at court at least 7 days before the first CMC [D7.5]; and it is the claimant’s responsibilities to prepare this [D7.1]  Contents: claim form, all statements of case, case memorandum, list of issues, case management information sheets, pre-trial timetable (if agreed or ordered), principal orders of court, any agreement in writing as to disclosure  Contents must be accurate and up to date, otherwise of no use  Claimant’s solicitor must consult with other parties to make necessary revisions and additions at least 7 days before any hearing at which court may give case management directions  Bundle must be updated each time case comes before the court  Case Management Conference o All claims in CC will have a CMC (usually in first available date six weeks after all Ds intending to file and serve defence have done so)  Will be heard by a Commercial Court Judge (High Court judge) o Different to QBD as court will decide to hold CMC only after parties’ DQ and any agreed directions  Heard by Masters or District Judges o Claimant’s responsibility to apply for CMC within 14 days of date when all defences have been filed and served (CCG says CMC cannot be postponed/adjourned without court order) o What takes place at CMC  Decide Directions

 Main purpose is to decide directions are required to get claim to trial (set out in CCG) Issues in Case  Judge will want to discuss issues; not possible to assess directions without understanding legal and factual issues in dispute  Requirements of Case  Judge will discuss requirements of case with advocates appearing on parties’ behalf  Advocates expected to attend and deal with questions about type/extent of evidence requires, how long it will take to prepare evidence and how much it is likely to cost  As primary concern is to fulfill the overriding objective, court has power under CPR 3 to order a separate trial on any issue and to decide the order in which issues are to be tried  Preliminary Issues  Judge will be interested in whether case may be shortened by deciding any issues separately before other issues are tried (D8.8 CCG)  Fix Pre-Trial Timetable  Judge will fix pre-trial timetable after having discussed the requirements of parties  Series of steps parties must take with deadlines leading up to the trial itself (or as many as possible before listing claim for another CMC)  Alternative Dispute Resolution  Judge will expect advocated to provide their views on whether claim is suitable for ADR  Judge may consider making an ADR order (Appendix 7 CCG contains draft) o Parties may use variety of non-determinative DR methods (usually mediation) o Requires parties to exchange names of 3 neutral individuals or panels who could conduct ADR procedures o Date is set by which parties must agree upon one of those individuals; if cannot agree then court will select a neutral third party o Parties must then take steps to resolve dispute using the agreed procedure; must report back to court by a particular stage in directions o If parties fail to start ADR, they will be expect to explain themselves at a further CMC (court monitors ADR process and maintains control of claim)  CPR Part 3 gives judge power to stay proceedings; parties must consider if helpful (do not always have to stay proceedings while considering ADR) o Attendance  Must be attended by representative who has conduct of case from each firm of solicitors instructed in the case; at least one advocate retained on behalf of each should also attend  Attendees must be fully familiar with the case and able to answer judge’s questions and make quick decisions (if do not have enough knowledge, judge may order adverse costs) Progress Monitoring Date o After case management directions, CC will keep tight trip on progress of claim o CC will set Progress Monitoring Date - falls after dates on which parties are supposed to have exchanged evidence; court will check if parties have complied with the directions o No equivalent of this in QBD 

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Case Management Information Sheet - Contents (good for parties to agree on these)  Paragraph 1 - Disclosure (standard or special, time limits considering location, accessibility and number)  Paragraph 2 - Inspection of Documents (giving notice to the other side)  Paragraphs 3 and 4 - Filing and Exchange of Statements of Witnesses of Fact (timing for witness to comment / attendance availability)  Paragraph 5 - Permission for Experts (sets out area of expertise; if SJE or separate)  Paragraph 6 - Exchange of Expert Evidence (simultaneous or sequential)  Paragraph 7 - Meeting of Exports (to narrow differences, draft joint memorandum showing common ground and outstanding issues to be resolved)  Paragraph 8 - Parties to call Experts whose Evidence has been Exchange to give Oral Evidence at Trial (chance to hear from experts and opportunity to cross-examine opponent’s expert) Final Preparation for Trial Other Standard Case Management Directions  Fixing Trial Date o Most cases in CC will have fixed date, arranged with clerk (in person, with regardless to availability of witnesses, experts and counsel)

Requirement for parties to keep court informed on progress so can discharge its continuing case management obligations o Order for Directions will fixed a Progress Monitoring Date (PMD) after date for exchanging evidence has expired Progress Monitoring Information Sheet o At least 3 days before PMD, parties must file and serve other parties with progress monitoring information sheet; tells court if parties have complied with pre-trial timetable (whether they will be ready for trial and if not, when they will be ready) o Judge will review progress towards trial in light of this (can reconvene CMC) Reconvening CMC o Parties free to agree minor variations to pre-trial timetable but cannot jeopardize trial date or PMD o If parties aware of problems complying with timetable, just apply for reconvening CMC, otherwise can be penalized in costs Pre-Trial Checklists o Parties to file this in accordance with directions, at latest 3 weeks before date fixed for trial o Should be completed with involvement of advocates; must annex an estimate of minimum and maximum length of trial to be signed by the trial advocates Pre-Trial Review o Will consider any issues of difficulty in conducting trial and whether any special arrangements need to be made; usually only in larger cases Lodging of Trial Bundles o Must be prepared in accordance with Appendix 10 of CCG o Must be lodged at court at least 7 days before date fixed for trial o

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Demonstration Notes - Case Management Documents in the Commercial Court Case Management  Special rules in CPR Part 58 and Admiralty and Commercial Court Guide for Commercial Courts  First CMC is usually the first time parties appear before court; before Commercial Court Judge  Judge gives directions based on standard pre-trial timetable List of Issues  Must be produced before the first CMC  Parties should agree on content; but if not possible then claimant must draft  Requirements o Identify main issues of law and fact o Section setting out common ground o Neutral drafting o No detailed sub-issues Case Management Information Sheet (CMIS)  Each party completes one; gets to view other party’s sheet before first CMC  24 details questions, answers assist judge in setting pre-trial timetable  Focus on disclosure, witnesses, expert evidence, trial and ADR Disclosure at CMC  Take instructions; do not assume client has already given you everything (explain duties of standard disclosure) o Investigate: types and classes of documents, how and where documentation stored, ease of access, time and cost required to perform search and number of employees needed for the search  Instructions on electronic documentation o Investigate: types of electronic documentation held, format, where held, software/hardware required and changes to software/hardware  Reasonableness; reasonable for client to search all of their documentary sources? o Consider: volume of documentation, nature and complexity of proceedings, ease and expense of retrieval, significance of any document likely to be located o In relation to electronic documents, consider: using a keyword search or a software  CMIS Question 5 o Time needed for disclosure = time client needs to perform search and time lawyers need to analyze documents, put documents into logical order and prepare disclosure list

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o Should always check deadline requested by the opponent CMIS Question 6 o If client wishes to limit the search, client must state the reasoning here CMIS Question 7 o Request specific disclosure where you want to ensure that a document or class of documents will be disclosed

Witnesses of Fact  CMIS Question 13 o Names of witnesses o Date for serving witness statements  Proves of evidence (and redrafts after considering other evidence)  Process likely to take a number of weeks  Check opponent’s answer to this in CMIS  Indicate which witness will come to give oral evidence (if none, why not?)  Interpreters required? Video link required? Expert Evidence  Issues o Consider list of issues o On which issues will expert evidence be required?  Who / How Many / How Much o Identity of proposed experts o Specify issue(s) upon which they will give expert evidence o State estimated cost o Permission will not be given for one party to call two experts on the same issue or different experts on different issues if court considers one expert can cover them all  When o Obtain details of how long expert will need to finalize their report o Obtain details of their existing commitments o Obtain details of their dates of availability  How o How should expert evidence be given? On paper or oral evidence? o Is a translator required? Is a video-link required? CMIS Trial Date  Court decides how issues will be tried o Split trial? If preliminary issue or issue of quantum assessed separately from issue of liability o Length of trial? Estimated minimum and maximum length of trial o Set trial date - difficult to change this date o Availability dates for client, witnesses, experts and advocates (should have dates available at CMC) Alternative Dispute Resolution  One of the first things court will wish to discuss at CMC  Attempts made to settle the case so far?  If no attempts, why not?  Does client want a stay on proceedings for the purpose of attempting ADR? If so, at what stage? Usually imposed immediately after CMC but may be useful to wait for after disclosure of evidence (fuller picture of case)  If appropriate, Commercial Court has standard ADR order Lecture 4 Notes - Costs Management and Electronic Disclosure Costs Management What is Costs Management?  Court manages costs to be incurred - dealing with cases at proportionate cost (overriding objective)  Sometimes undertaken at a CCMC (Case and Cost Management Conference) or a separate hearing after CMC  Cost Management Rules - CPR 3.12-3.18 and PD 3E  Applies to all Part 7 Claims allocated to the multi-track except where

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Valued at £10m or more Subject of fixed or scale costs Court orders otherwise

Procedure  Parties must file and exchange costs budgets  Deadline o Claim of less than £50,000, file budget with DQ o Claim of £50,000 or more, file budget 21 days before first CMC  Additional requirement of filing Budget Discussion Report 7 days before first CMC  Sanction for failing to file budget on time - party will be treated as having filed a budget comprising only of court fees (CPR r3.14) Costs Management Order  CPR r3.15 - Court will make CMO o Records extent to which budgets agreed o Revises and approved budgets  Parties must work together, so far as practicable, the case proceeds with the agreed/approved budget (otherwise winner may be able to claim the additional costs from loser also; either standard or indemnity basis) o Standard - costs must be reasonable and proportionate (doubts in favour of paying party) o Indemnity - costs must be reasonable, not proportionate (doubts in favour of receiving party)  CPR r3.18 - When assessing on standard basis, court will o Will have regard to receiving party’s last approved/agreed budget o Not depart from budget unless satisfied that there is good reason to do so Structure and Format of Budget  Must use Precedent H, annexed to PD 3E (excel sheet)  Where costs are less than or equal to £25,000 or where the claim is less than £50,000, only 1 page is required  Page 1 contains summary o Divided into 10 stages + contingencies (incurred and estimated)  Pre-Action Costs  Issue/Statement of Case Costs  CMC Costs  Disclosure Costs  Witness Statements Cost  Expert Reports Cost  PTR Costs  Trial Preparation Costs  Trial Costs  ADR/Settlement Discussions Cost  Contingencies o Incurred and estimated future costs o Time costs and disbursements o Statement of Truth  Pages 2-5 require more detailed info Avoiding the Consequences of Breach  CPR r3.8 - sanctions have effect unless defaulting party applies for and obtains relief under r3.9  CPR r3.9 - court will consider all circumstances, including o (a) Need for litigation to be conducted efficiently and at a proportionate cost o (b) Need to enforce compliance with rules, PDs and orders  Mitchell v Newsgroup 2013 o Claimant failed to file cost budget of £506,000 on time o Claimant applied for relief on sanction which was refused; he appealed but the decision was upheld o Court held that relief should only be granted where breach was trivial or where there was good reason for the breach o Situation revisited in Denton; clarified this case and developed a test for relief  Denton v TH White 2014 o Was breach serious or significant? If no, then relief will be granted. If yes, move to next stage.

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Why did breach occur? If good reason, relief will be granted. If no, move to next stage. (c) Consider CPR r3.9 factors giving weight to (a) [need for litigation to be conducted efficiently and at a proportionate cost] and (b) [need to enforce compliance with rules, PDs and orders] Court must consider all circumstances, such as how promptly application was made and whether there were any other breaches

E-Disclosure What is E-Disclosure and why is it Important?  Process of identifying, preserving, collecting, filtering, reviewing, disclosing and allowing inspection of electronically stored documents  “gross incompetence” not to know rules on e-disclosure and practice them (Simon Brown in Earles v Barclays) Definition of “Electronic Document”  CPR r31.4 - “anything in which information of any description is recorded”  PD 31B, para 5(3) - information stored on computers and portable devices, servers, back-up systems, together with information that may have been deleted and other embedded data not usually visible on screen or a print-out Identifying and Preserving Electronic Documents  Meet with the client/IT department to identify o Identity of key players o Documents and information created/acquired by key players that might be pertinent o Date ranges in which documentation created/acquired o Location of that documentation o Whether it still exists/is readily accessible o Document deletion/retention policies  PD 31B, para 7 - obligation to preserve documents in its original form Role of Technology  Date searches  Custodian searches  Document type searches  Keyword or concept searches  Email threading  Clustering or data sampling  Predictive coding Setting the criteria to be used by the technology is the key to its success. Obligations Prior to first CMC for E-Disclosure  CPR r31.5(3) - file disclosure report, Form N263, not less than 14 days before first CMC  PD 31B, para 10 - electronic documents questionnaire, Form N264, is optional  CPR r31.5(4) - where EDQ is used, file at same time as disclosure report  CPR r31.5(5) - agree proposal for disclosure not less than 7 days before first CMC  PD 31B, paras 8/9 - list of issues to discuss  PD 31B, para 14 - submit document summarizing matters on which agree and disagree prior to CMC Searching for Relevant Electronic Documents (aka “Harvesting”)  CPR r31.7 - “reasonableness” will depend on o Number of documents involved o Nature and complexity of proceedings o Ease and expense of retrieval o Significance of any document likely to be located o NB: CPR r31.7(3) and 31.3(2)  PD 31B, paras 20-24 - factors to be considered in relation to electronic documents  Does client have IT expertise in-house? Practicalities  Stage 1: Filter using software  Stage 2: Review

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Stage 3: Disclose using Form N265 (amended) Stage 4: Inspect o Electronic copies to be in native form (so that date/access dates are available to view) o If technology is not readily available, party making disclosure must cooperate in making facilities available

Workshop Notes READ THE FOLLOW CPR PART 20 RULES Part 20.4

Part 20.5

Part 20.6

Part 20.7

Preparatory Tasks

Prep Task 1 1. Steps Smithson must take to defend claim and by which dates  Acknowledge Ser...