DR WS8
Case and Costs Management
Overview of the Procedure
1. When the defence has been filed, the court will provisionally decide which “track” to allocate the claim to.
2. The court will then send the parties’ a Notice of Allocation, which, for Multi-Track Claims, will normally
require the parties to:
Complete a Directions Questionnaire (Form N181) by a specified date.
Attempt to agree directions and then file proposed directions by a specified date.
File and exchange cost budgets either:
a. With the DQ if the value of the claim is less than £50,000 (CPR 3.13)
b. In any other case, not later than 21 days before the first Case Management Conference (CPR
3.13).
Court’s case management powers
r1.4: the court has the duty to manage cases actively.
r3.1(2): lists the non-exclusive powers of the court.
The court can make any orders conditional and specify the consequences of the party’s non-compliance;
ordering a party to pay money into court as security (r. 3.1(5)) is a typical ‘consequence’ if any party has
WITHOUT GOOD REASON failed to comply with a rule, PD or court order.
When exercising its power under r.3.1(5) the court must have regard to the amount in dispute and the costs
the parties have/may incur (r.3.1(6)).
Extension of The court has the power to extend the time for compliance with a Rule, PD or court order, including
time retrospectively (CPR 3.1(2)(a))
CPR 3.1(2) (b) adjourn or bring forward a hearing;
rest of rules (bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court;
(c) require a party or a party’s legal representative to attend the court;
(d) hold a hearing and receive evidence by telephone, or by using any other method of direct oral
communication;
(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
(f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue;
(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration;
(l) dismiss or give judgment on a claim after a decision on a preliminary issue;
(ll) order any party to file and exchange a costs budget;
(m) take any other step or make any other order for the purpose of managing the case and furthering the
overriding objective, including hearing an early neutral evaluation with the aim of helping the parties settle
the case.
Strike-out The court has the power to strike out all/part of a statement of case (CPR 3.4(2)):
o It may do so of its own accord (does not require an application), or the Claimant can make an
application.
o The court may exercise its power if:
The statement of case discloses no reasonable grounds for bringing or defending the
claim (i.e. it is doomed to failure) - or an inadequate statement of case
The statement of case is an abuse of the court’s process or is otherwise likely to obstruct
the just disposal of the proceedings or
There has been a failure to comply with a rule, practice direction or court order.
However, if there are less drastic ways of dealing with default which will produce
a just result, strike out is unlikely to be awarded).
Court, when deciding whether to strike out, must have considered all the
circumstances including r 3.9 - relief from sanctions
1
,DR WS8
Must also consider that striking-out purely for breaching the rules may be a breach
of Article 6(1) ECHR, unless breach meant it was no longer possible to have a fair
trial
o Further appropriate circumstances:
Delay/non-compliance means it is no longer possible to have a fair trial (Habib Bank v
Abbeypearl)
Default is so bad it amounts to an abuse of the court (UCB Corporate Services v Halifax)
HOWEVER, where a statement of case is defective but can be cured by amendment, court may give the
party opportunity to amend it (Nash v 4MA Ltd)
Alternative Alternatively, the court may sanction the party e.g. for delay, by requiring them to pay costs caused by
sanctions: their failure on an indemnity basis or on the unreasonable behaviour basis (if Part 45 fixed costs apply)
costs/interes o Court will make a summary assessment, party may be required to pay immediately
t o Wasted Costs Order: If court believes the fault is with legal representative, can order solicitors to
pay under SCA 1981, s51
Or, make an order affecting the interest payable on any damages (increase to sanction the defendant;
decrease to sanction the claimant).
Unless orders Where a party fails to comply with a direction, the court may serve an order which provides that
“unless” a party complies with that direction, their claim/defence will be struck out.
Can still apply for extension of time
Must first ask party to comply through communication/warn other party of intention to make unless
order
Transfer of CPR 26.2 – a claim is automatically issued in the High Court where the claim is:
money claims o For a specified amount of money; and
o is against a defendant who is an individual; and
o is commenced in a court that is not the defendant’s home court and the claim has not been
transferred to another defendant’s home court
CPR 26.3 – provides for transfer of money claims within the County Court
o If claim is referred to a judge for directions: transfer to defendant’s home court, preferred
hearing center, or another County Court hearing centre
o If the defendant is an individual and the claim is for a specified sum of money: claim must be sent
to the defendant’s home court when the parties have filed DQ/any stay ordered by the court to
attempt settlement has expired.
o If there are two or more defendants and one or more is an individual: proceedings transferred to
the home court of the defendant who filed their defence first.
o NB: proceedings not transferred until all parties have complied with the notice or the time for
doing so has expired.
Individual defendant to a money claim may request that proceedings are transferred to a County
Court hearing centre that is NOT their home court
Allocation Overview
Part 26 - When defence is filed, the court provisionally decides which track the case will follow. It does this by:
Serving each party a notice of proposed allocation
o Small Claims: Form 149A
o Fast Track: Form N149B
o Intermediate Track: Form N149D
o Multi-Track: Form N149C
Requiring the directions questionnaire by a certain date.
o Via Form N181 (Fast/multi), Form N180 small track
SEE DIRECTIONS QUESTIONNAIRE BELOW
Once parties file their completed DQ judge will allocate track and serve a notice to parties
Parties must:
a. consult one another and co-operate in completing DQ
2
, DR WS8
b. try to agree the case management directions which they will invite the court to make
c. not delay the filing of the DQ or, where required, the proposed directions (whether or not agreed).
Which track?
Small claims Fast track Intermediate track Multi-track
CPR PT 27 CPR PT 28 CPR PT 28 CPR PT 29
Straight-forward claims of Claims worth between Claims worth between £25,000 and Claims worth more than
value not exceeding £10,000 and £25,000 that £100,000 and include a claim for monetary £100,000. Claims will go to the
£10,000, although claims can be tried in one day or relief within £100,000 and can be tried County Court if straight-forward
worth more than this less. within 3 days (r26.9(7)) (debt action etc.) and to the
may also be allocated to Will be heard in the High Court if complex.
this track (PD 26 para County Court unless they Claim brought by 1 claimant against 2
8.1(2)). raise a point of public defendants/vice versa Claim is not for any other track
interest.
Claims which can be tried Governed by fixed recoverable costs regime
within one day Governed by fixed in Part 45
recoverable costs regime
in Part 45
PD para 2.6 lists the Will normally have Will normally have standard directions for Could have either standard
claims suitable for being standard directions for case management directions (same as
tried in the RCJ, e.g. case management fast/intermediate track) or
professional negligence. See Directions below (same as fast track) court may adapt directions
See Directions below
If NOT in this list, transfer Max. 2 experts per party for oral evidence See Directions below
to County Court where Max. 1 expert per party
value is less than £50,000, for any expert field Claim for non-monetary relief can ONLY be Court will either:
or to the High Court Max. 2 expert fields brought if in the interests of justice 1. give directions for the
District Registry where management of the
value is over £50,000. Court will set date to hold case case and set a
management conference (CMC) timetable for the
For example: ‘This claim is steps to be taken
suitable to be managed Parties must try to agree appropriate between the giving of
and tried in the RCJ directions for the management of the directions and the
because it is a proceedings and submit agreed trial; or
professional negligence directions/respective proposals, to the 2. fix a CMC, or a pre-
claim worth over £50K court at least 7 days before the CMC. trial review or both
and the witnesses are and give such
based in London.’ Directions must address: disclosure of directions relating to
documents, service of witness statements, the management of
Parties may decide for expert evidence, whether to have a pre-trial the case as it sees fit.
case to be heard review hearing and listing the case for trial
WITHOUT a hearing based If straightforward court gives
on SoC and documents Directions that MUST be included: oral directions with NO CMC:
submitted (r.27.9) expert evidence is to be limited to 1 witness - Order filing and
per party, unless reasonably required and sharing of additional
Limited costs can be proportionate; total length of ALL permitted information needed
recovered e.g., only fixed witness statements and witness summaries to clarify each party’s
costs from issuing claim, not exceeding 30 pages; any expert report case.
court fees paid, travel not exceeding 20 pages, excluding - Order standard
expenses, loss of necessary photographs, plans and academic disclosure between
earnings, limited expert or technical articles attached to the report. the parties.
fees - Require witness
- But court may If directions agreed and court approves statements to be
award further CMC CANCELLED exchanged
costs if party simultaneously.
behaved - Appoint a single joint
unreasonably expert unless there’s
a good reason not to.
- Order simultaneous
exchange of expert
reports on issues
where a joint expert is
not appointed.
- If experts disagree,
order a discussion
3
Case and Costs Management
Overview of the Procedure
1. When the defence has been filed, the court will provisionally decide which “track” to allocate the claim to.
2. The court will then send the parties’ a Notice of Allocation, which, for Multi-Track Claims, will normally
require the parties to:
Complete a Directions Questionnaire (Form N181) by a specified date.
Attempt to agree directions and then file proposed directions by a specified date.
File and exchange cost budgets either:
a. With the DQ if the value of the claim is less than £50,000 (CPR 3.13)
b. In any other case, not later than 21 days before the first Case Management Conference (CPR
3.13).
Court’s case management powers
r1.4: the court has the duty to manage cases actively.
r3.1(2): lists the non-exclusive powers of the court.
The court can make any orders conditional and specify the consequences of the party’s non-compliance;
ordering a party to pay money into court as security (r. 3.1(5)) is a typical ‘consequence’ if any party has
WITHOUT GOOD REASON failed to comply with a rule, PD or court order.
When exercising its power under r.3.1(5) the court must have regard to the amount in dispute and the costs
the parties have/may incur (r.3.1(6)).
Extension of The court has the power to extend the time for compliance with a Rule, PD or court order, including
time retrospectively (CPR 3.1(2)(a))
CPR 3.1(2) (b) adjourn or bring forward a hearing;
rest of rules (bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court;
(c) require a party or a party’s legal representative to attend the court;
(d) hold a hearing and receive evidence by telephone, or by using any other method of direct oral
communication;
(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
(f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue;
(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration;
(l) dismiss or give judgment on a claim after a decision on a preliminary issue;
(ll) order any party to file and exchange a costs budget;
(m) take any other step or make any other order for the purpose of managing the case and furthering the
overriding objective, including hearing an early neutral evaluation with the aim of helping the parties settle
the case.
Strike-out The court has the power to strike out all/part of a statement of case (CPR 3.4(2)):
o It may do so of its own accord (does not require an application), or the Claimant can make an
application.
o The court may exercise its power if:
The statement of case discloses no reasonable grounds for bringing or defending the
claim (i.e. it is doomed to failure) - or an inadequate statement of case
The statement of case is an abuse of the court’s process or is otherwise likely to obstruct
the just disposal of the proceedings or
There has been a failure to comply with a rule, practice direction or court order.
However, if there are less drastic ways of dealing with default which will produce
a just result, strike out is unlikely to be awarded).
Court, when deciding whether to strike out, must have considered all the
circumstances including r 3.9 - relief from sanctions
1
,DR WS8
Must also consider that striking-out purely for breaching the rules may be a breach
of Article 6(1) ECHR, unless breach meant it was no longer possible to have a fair
trial
o Further appropriate circumstances:
Delay/non-compliance means it is no longer possible to have a fair trial (Habib Bank v
Abbeypearl)
Default is so bad it amounts to an abuse of the court (UCB Corporate Services v Halifax)
HOWEVER, where a statement of case is defective but can be cured by amendment, court may give the
party opportunity to amend it (Nash v 4MA Ltd)
Alternative Alternatively, the court may sanction the party e.g. for delay, by requiring them to pay costs caused by
sanctions: their failure on an indemnity basis or on the unreasonable behaviour basis (if Part 45 fixed costs apply)
costs/interes o Court will make a summary assessment, party may be required to pay immediately
t o Wasted Costs Order: If court believes the fault is with legal representative, can order solicitors to
pay under SCA 1981, s51
Or, make an order affecting the interest payable on any damages (increase to sanction the defendant;
decrease to sanction the claimant).
Unless orders Where a party fails to comply with a direction, the court may serve an order which provides that
“unless” a party complies with that direction, their claim/defence will be struck out.
Can still apply for extension of time
Must first ask party to comply through communication/warn other party of intention to make unless
order
Transfer of CPR 26.2 – a claim is automatically issued in the High Court where the claim is:
money claims o For a specified amount of money; and
o is against a defendant who is an individual; and
o is commenced in a court that is not the defendant’s home court and the claim has not been
transferred to another defendant’s home court
CPR 26.3 – provides for transfer of money claims within the County Court
o If claim is referred to a judge for directions: transfer to defendant’s home court, preferred
hearing center, or another County Court hearing centre
o If the defendant is an individual and the claim is for a specified sum of money: claim must be sent
to the defendant’s home court when the parties have filed DQ/any stay ordered by the court to
attempt settlement has expired.
o If there are two or more defendants and one or more is an individual: proceedings transferred to
the home court of the defendant who filed their defence first.
o NB: proceedings not transferred until all parties have complied with the notice or the time for
doing so has expired.
Individual defendant to a money claim may request that proceedings are transferred to a County
Court hearing centre that is NOT their home court
Allocation Overview
Part 26 - When defence is filed, the court provisionally decides which track the case will follow. It does this by:
Serving each party a notice of proposed allocation
o Small Claims: Form 149A
o Fast Track: Form N149B
o Intermediate Track: Form N149D
o Multi-Track: Form N149C
Requiring the directions questionnaire by a certain date.
o Via Form N181 (Fast/multi), Form N180 small track
SEE DIRECTIONS QUESTIONNAIRE BELOW
Once parties file their completed DQ judge will allocate track and serve a notice to parties
Parties must:
a. consult one another and co-operate in completing DQ
2
, DR WS8
b. try to agree the case management directions which they will invite the court to make
c. not delay the filing of the DQ or, where required, the proposed directions (whether or not agreed).
Which track?
Small claims Fast track Intermediate track Multi-track
CPR PT 27 CPR PT 28 CPR PT 28 CPR PT 29
Straight-forward claims of Claims worth between Claims worth between £25,000 and Claims worth more than
value not exceeding £10,000 and £25,000 that £100,000 and include a claim for monetary £100,000. Claims will go to the
£10,000, although claims can be tried in one day or relief within £100,000 and can be tried County Court if straight-forward
worth more than this less. within 3 days (r26.9(7)) (debt action etc.) and to the
may also be allocated to Will be heard in the High Court if complex.
this track (PD 26 para County Court unless they Claim brought by 1 claimant against 2
8.1(2)). raise a point of public defendants/vice versa Claim is not for any other track
interest.
Claims which can be tried Governed by fixed recoverable costs regime
within one day Governed by fixed in Part 45
recoverable costs regime
in Part 45
PD para 2.6 lists the Will normally have Will normally have standard directions for Could have either standard
claims suitable for being standard directions for case management directions (same as
tried in the RCJ, e.g. case management fast/intermediate track) or
professional negligence. See Directions below (same as fast track) court may adapt directions
See Directions below
If NOT in this list, transfer Max. 2 experts per party for oral evidence See Directions below
to County Court where Max. 1 expert per party
value is less than £50,000, for any expert field Claim for non-monetary relief can ONLY be Court will either:
or to the High Court Max. 2 expert fields brought if in the interests of justice 1. give directions for the
District Registry where management of the
value is over £50,000. Court will set date to hold case case and set a
management conference (CMC) timetable for the
For example: ‘This claim is steps to be taken
suitable to be managed Parties must try to agree appropriate between the giving of
and tried in the RCJ directions for the management of the directions and the
because it is a proceedings and submit agreed trial; or
professional negligence directions/respective proposals, to the 2. fix a CMC, or a pre-
claim worth over £50K court at least 7 days before the CMC. trial review or both
and the witnesses are and give such
based in London.’ Directions must address: disclosure of directions relating to
documents, service of witness statements, the management of
Parties may decide for expert evidence, whether to have a pre-trial the case as it sees fit.
case to be heard review hearing and listing the case for trial
WITHOUT a hearing based If straightforward court gives
on SoC and documents Directions that MUST be included: oral directions with NO CMC:
submitted (r.27.9) expert evidence is to be limited to 1 witness - Order filing and
per party, unless reasonably required and sharing of additional
Limited costs can be proportionate; total length of ALL permitted information needed
recovered e.g., only fixed witness statements and witness summaries to clarify each party’s
costs from issuing claim, not exceeding 30 pages; any expert report case.
court fees paid, travel not exceeding 20 pages, excluding - Order standard
expenses, loss of necessary photographs, plans and academic disclosure between
earnings, limited expert or technical articles attached to the report. the parties.
fees - Require witness
- But court may If directions agreed and court approves statements to be
award further CMC CANCELLED exchanged
costs if party simultaneously.
behaved - Appoint a single joint
unreasonably expert unless there’s
a good reason not to.
- Order simultaneous
exchange of expert
reports on issues
where a joint expert is
not appointed.
- If experts disagree,
order a discussion
3
