LIT LG10 – The Three Tracks, Principles of Allocation and Case Management Directions PDF

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LIT LG10 – The Three Tracks, Principles of Allocation and Case Management Directions Topics -

Automatic transfer of defended cases between the courts Active case management The financial scope for cases allocated to the small claims track and fast track The principles which the court applies when allocating a case to a case management track The purpose of case management directions and the usual directions & timetable for preparing a fast track case for trial

Background - Allocation is the streaming of defended cases into case management tracks - The cases in which the outcome is most certain should not require allocation as they should have been weeded out as a result of:  Settlement  judgment on admissions  default judgment, or  summary judgment - The court initiates the process after it receives the Defence by giving the parties a notice of proposed allocation and setting the parties a deadline for submitting directions questionnaires (DQs) Automatic transfer of defended claims between courts - For High Court cases , CPR 26.2 provides that once a defence is received the claim will be transferred to the Defendant’s home court if the claim is for a specified amount and the Defendant is an individual  Otherwise, the claim stays with the issuing district registry.  Not much on course of High Court. - For County Court Money Claims (focus of course), where CCMCC has only an administrative role, CPR 26.2A(3) - (6) provide that claims will be sent to:  The Defendant’s home court if the Defendant is an individual and the claim is for a specified sum, or to  The Claimant’s preferred hearing centre once the parties have filed their directions questionnaires Active case management – CPR 1.4 - The allocation of cases is an exercise of judicial case management. CPR 1.4 places courts under a duty to actively manage cases and defines what is meant by active case management:  A) encouraging parties to co-operate with each other - parties are required to cooperate when they complete DQs and try to agree case management directions)  B) identifying issues at an early stage - statements of case should identify issues/DQ requires parties to indicate which witnesses they intend to call in relation to which disputed facts)  C) deciding which issues need investigation and trial and disposing of rest - this should be clear from the statements of case o Try to reduce number of issues in dispute before trial.  D) encouraging parties to use ADR - parties required to consider 1 month stay for settlement when completing DQs - explicit reference to mediation o Try to settle the case before trial.  E) helping parties to settle whole/part case - think about narrowing issues in dispute or need for stay even if not using ADR  F) fixing timetables/controlling progress of case - court gives case management directions after allocating case to a track  G) considering whether likely benefits of taking a step justify its cost - parties should consider whether standard directions or more case-specific directions are needed  H) dealing with case without parties attending court - allocation is a paper exercise with a presumption against allocation hearings/case management conferences

 ADR -

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I) making use of technology - if directions hearing necessary, usually dealt with by telephone or video-conference

Since litigation should only be used as the last resort an allocation is the court’s first opportunity to manage the case, it should come as no surprise that the court will consider whether other means of dispute resolution should be followed in each case. R (Cowl) v Plymouth County Council [2001] EWCA Civ 1935 - the Defendants’ offer to treat an application for permission for judicial review as a complaint made under the statutory complaints procedure was rejected by the Claimant. The Court of Appeal thought the offer was very sensible and should have been the basis for negotiation.  Lord Woolf: “If they could not do this without help, an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today, sufficient should be known about ADR to make the failure to adopt it, in particular where public money is involved, indefensible” Dunnett v Railtrack plc [2002] 2 All ER 850 (CA): The Respondent successfully opposed an appeal against the original decision, but did not recover the costs of the appeal as it had unreasonably refused an offer of ADR made by the Claimant before the appeal Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 contains the Court of Appeal’s guidance:  Ordering parties to mediate against their will may obstruct right of access to court and infringe Article 6 ECHR;  There is no presumption that mediation is appropriate in every case;  When considering whether ADR would have been suitable, the Court must look at: o the nature of the dispute, o the merits of case and the extent to which other settlement methods have been tried and failed, o whether the costs of ADR would have been disproportionate; o whether delay in proceedings may have been prejudicial to a party; o whether ADR had a reasonable prospect of success

Allocation: the role of the District Judge - Assuming that the case is to proceed to trial, the court will have to consider which of the three case management tracks is suitable. - S/he reads the parties statements of case and directions questionnaires - S/he decides the appropriate track for the case - by applying the allocation factors in CPR 26.8 and either  gives case management directions, or  fixes a case management conference, which is an appointment which the parties must attend when case management directions will be made (this usually happens in multi-track cases) - Allocation is a key part of judicial case management Financial scope for small claims track - General rule - “the small claims track is the normal track for any claim which has a financial value of not more than £10,000” - CPR 26.6(3) - PI cases: CPR 26.6(1) applies - the small claims track is the normal track for personal injury claims where the financial value of the entire claim is not more than £10,000 and the financial value of the claim for PSLA is not more than £1,000 Financial scope for fast track - CPR 26.6(4): the fast track is suitable if the small claims track is not the normal track and the financial value of the claim is not more than £25,000 - CPR 26.6(5): the fast track is only appropriate if:  the court considers the trial is likely to last no longer than 1 day; and  oral expert evidence will be limited to 1 expert per party in relation to any expert field; and  expert evidence is needed in no more than 2 fields of expertise

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The court makes the judgment: it is the responsibility of the parties to persuade the court if they believe the trial will last longer than 1 day or the need for expert witness evidence requires a claim of fast track value to be allocated to multi-track The court may allocate a case to a track with a lower value than the claim:  PD 26 para 8.1(2) states that the court may allocate a claim to the small claims track if the value of the claim is above £10,000  PD 26 para 9.1 provides that where the court is to decide whether to allocate the claim to the fast track or multi-track, it will allocate to the fast track “unless it believes that it cannot be dealt with justly on that track”  CPR 26.6(6): the multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track

Financial scope for multi-track - CPR 26.6(6): the multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track The allocation factors: CPR 26.8 - If the defendant accepts part of the value i.e. £10,000 of a £28.000 case the value would be determined as £18,000 for the purposes of allocating it to a track. - 1. The financial value, if any, of the claim  CPR 26.8(2) “It is for the court to assess the financial value of a claim and in doing so it will disregard: o any amount not in dispute o Interest o Costs o contributory negligence  If the claim has no financial value, it is allocated to the most suitable track with regard to the other considerations in CPR 26.8(1) - 2. The nature of the remedy sought - 3. The likely complexity of the facts, law or evidence - 4. The number of parties or likely parties  More parties = Trial will probably last longer. - 5. The value of any counterclaim or other Part 20 claim and the complexity of the matters relating to it  The counterclaim may be considered when determining the track. - 6. The amount of oral evidence which may be required - 7. The importance of the claim to persons who are not parties - 8. The views expressed by the parties - 9. The circumstances of the parties Taking stock of case at allocation stage I assess the case as stated - 1. Consider both parties’ statements of case - 2. Is there a need to amend your statement of case? (should sort it out now) - 3. Is there a need for further information from your opponent? - 4. Is there a need to join a party to the claim or to make a counterclaim under CPR Part 20? Taking stock of case at allocation stage II evaluation of evidence - In relation to each disputed issue of fact:  Consider the evidence you have  Identify any evidence you need  Identify the witnesses you intend to call  Consider whether expert evidence is required  If so, in which field of expertise  Identify the expert you intend to rely on  Assess whether oral expert evidence is needed - NB: evidence includes documents Taking stock of case at allocation stage III consider settlement - 1. How will you justify not attempting to settle the claim at this stage? - 2. Consider whether there should be a 1 month stay to try to settle the claim

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3. ADR? 4. Should you make a Part 36 offer (or another one if you have already made one)?

Taking stock of case at allocation stage IV miscellaneous matters - 1. Quantify costs incurred to date - 2. Forecast future costs - will need to file costs budget in multi-track cases (short form if costs < £25,000) - 3. Consider which case management track is most suitable for the needs of the case - 4. Consider the venue for trial - should the case be transferred pursuant to CPR Part 30? (See CPR 30.3 criteria) - 5. Try to agree case management directions with your opponent (eg disclosure, inspection) Usual case management directions - PD 28 para 3.12 - standard fast track directions:  Disclosure of documents - 4 weeks  Exchange of witness statements - 10 weeks  Exchange of experts’ reports - 14 weeks  Court to send parties pre-trial check lists - 20 weeks  Filing of completed pre-trial check lists - 22 weeks  Hearing - 30 weeks - Time runs from the date the order was made - Parties are given fixed dates to work towards Directions/timetable must be obeyed - CPR 1.2: Dealing with cases justly & at proportionate cost includes…enforcing compliance with rules, practice directions & orders - CPR 2.11 permits parties to vary time limits in writing unless CPR, PDs or court orders otherwise - CPR 3.8(3) - (4): time for doing an act for which CPR, PD or order imposes a sanction for non-compliance may be extended in writing by parties for a maximum of 28 days provided the extension does not put a hearing date at risk (unless court orders otherwise) - This applies to unless orders, CPR 32.10 (need permission to call a witness whose witness statement not served in time), returning pre-trial checklists, postponing trial...