STEPS IN CASE MANAGEMENT (i) Allocation and process to trial

4.1 Once proceedings have been issued and a defence filed a case will be tried on one of three procedural “tracks”: small claims; fast track or multi-track. Although the

98 For example, a firmer steer towards imposing interest penalties on defendants who do not provide essential information than the power conferred by paragraph 4.6 of the PDPAC.

99 The issue about which I was questioned most often and most closely by practitioners in Australia was whether pre-action protocols in their present form in England and Wales were (a) saving costs and promoting settlement or (b) generating unnecessary costs. There seems to be a perception amongst some overseas lawyers that pre-action protocols are driving up English litigation costs.

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parties may indicate which track they prefer the court will ultimately determine the appropriate route¹⁰⁰ based on factors such as (a) the financial value of the case; (b) the amount in dispute; (c) the complexity of the issues; (d) the number of witnesses likely to be called; (e) whether expert evidence is needed; (f) any intended applications; (g) costs estimates; (h) trial time estimates; (i) settlement proposals and (j) pre-action exchanges. Necessary information is provided by the parties in the allocation questionnaire (“AQ”) which is sent out after service of the defence. Each party must lodge a costs estimate with its AQ.

4.2 More detailed guidance on allocation to tracks is found in the CPR, but in general:

(i) Small claims: Claims worth less than £5,000, personal injury claims where the value for general damages is not more than £1,000 and housing disrepair claims for less than £1,000.¹⁰¹

(ii) Fast track: Claims worth up to £25,000¹⁰² where the trial is likely to last less than one day (five sitting hours) and there is expert evidence in no more than two fields.

(iii) Multi-track: This track accommodates all other cases.¹⁰³ Cases issued in the Commercial Court, TCC, Mercantile Courts and Part 8 claims are automatically allocated to the multi-track.

4.3 Small claims. The process is described in chapter 49 below. It is fairly informal and is specifically aimed at litigants in person. The courts have a target that all small claims cases should be heard within 15 weeks of allocation. In the financial year 2006/2007, this was achieved in 80% of cases.¹⁰⁴ As noted elsewhere in this report, users of the small claims track are generally reasonably satisfied with the procedure.

4.4 Fast track cases. For fast track claims paragraph 3.12 of the Practice Direction to CPR Part 28 sets out a typical timetable of 30 weeks from the date of notice of allocation to trial. The Appendix to the same Practice Direction sets out standard directions. Cases will normally be tried in the county court by a district judge, unless it is more practicable or appropriate for it to be heard by a circuit judge. Efforts will also be made so that the case is heard in the defendant's “home court”.¹⁰⁵ Where it is necessary or appropriate, claims can be transferred between the courts. A worrying trend is that sometimes claimants are perceived to be starting proceedings in courts other than the relevant home court, or most convenient court, because of

“difficulties” with certain courts.¹⁰⁶

4.5 Multi-track cases. All of the larger and more complex claims are allocated to the multi-track. These cases may be heard in the High Court or in a county court at one of the designated civil trial centres. Cases under £50,000 will generally be heard in a county court,¹⁰⁷ unless (a) an enactment requires the cases to be heard in the

100 Except where cases are automatically assigned to a track

101 See CPR rule 26.6.

102 Prior to 6^th April 2009 this limit was £15,000.

103 CPR rule 26.6(6).

104 See the Crown, County and Family Court Annual Report April 2006 to March 2007.

105 CPR rule 26.2.

106 See, for instance, page 4 of the Leeds Group Annual Report for 2006 – 2007, which was written by the Designated Civil Judge and Regional Director. The same sentiment has been expressed to my judicial assistant by one of the court clerks that she spoke to.

107 Practice Direction to Part 29, paragraph 2.6.

Chapter 43: Case management High Court (e.g. defamation claims), (b) the cases fall within a specialist list or (c) the

cases fall into the categories mentioned in the Practice Direction to CPR Part 29, paragraph 2.6. Although there is an outline procedure for multi-track cases set out in CPR Part 29 and the Practice Direction thereto, the procedure is much more flexible than that which applies to fast track cases. HMCS has set a target of 50 weeks for the completion of multi-track cases.

4.6 It has been the experience of judges and practitioners alike that since the CPR were introduced, almost exactly ten years ago, proceedings have been brought to trial more quickly. This is a cost saving factor, which should not be overlooked. There are two key reasons why shortening the timetable reduces cost:

(i) Work tends to expand to fill available time, especially since fee earners are under constant pressure to record chargeable hours.¹⁰⁸

(ii) The longer a case runs on, the more often the personnel handling the file will change. Every change of personnel involves significant additional costs and a learning curve.

(ii) Interim hearings

4.7 Case management conferences (“CMCs”). The purpose of a CMC is to:

(1) “review the steps which the parties have taken in the preparation of the case, and in particular their compliance with any directions that the court may have given;

(2) decide and give directions about the steps which are to be taken to secure the progress of the claim in accordance with the overriding objective; and

(3) ensure as far as it can that all agreement that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded.”¹⁰⁹

4.8 The DCA Research states that “[CMCs] represent the practical and philosophical expression of court control in the case managed track”. It praises CMCs as “one of the major successes of the CPR”. The Phase 1 submissions seem to recognise that CMCs work well. However, one submission suggested that they can be formulaic and lacking in the assertive case management role that was envisaged by Lord Woolf.

4.9 In complex or high value cases it is usual for a number of CMCs to be held throughout a case so that the court can monitor compliance with directions and to make further directions as necessary. In allowing variation to the directions, the judge will always be mindful of any amendments that may jeopardise the ultimate date for trial.

4.10 Agreeing directions – the pros and cons. Prior to the CMC the parties will try to agree the directions. In many cases this is a worthwhile exercise, as experienced

108 This assertion does not involve any imputation upon solicitors. It is almost universal experience that work tends to follow the most remunerative path.

109 Practice Direction to CPR Part 29, paragraph 5.1.

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practitioners are just as well placed as¹¹⁰ the judiciary to be able to devise a sensible timetable. However, in larger, and sometimes more acrimonious proceedings, this attempt to agree directions can become a cost consuming exercise. There may be several rounds of correspondence (rather than a simple call between partners). In an attempt to show the court that they are being co-operative, each party may concede a little, but neither party may be satisfied and the resultant compromise agreement may not reflect the best course of action. In such circumstances it may be cheaper and more effective for each party (a) to set out its position; (b) to make clear that neither party believes a compromise to be the best course of action; and (c) to refer the matter to the court for an appropriate direction.

4.11 Interim hearings. In addition to CMCs, the court may be called upon between issue of proceedings and trial to hear interim applications. These may include requests for specific disclosure, applications for extensions of time, applications for permission to amend, etc.

4.12 Listing of interim hearings. I am told that in some courts the listing of interim hearings is problematic. There can be lengthy delays before an interim application is heard.¹¹¹ This in turn delays the parties’ preparations for trial, generates further inter-solicitor correspondence and leads to increased costs. It would be helpful to receive further information on this issue, both from court users and from HMCS, during Phase 2. If it turns out that some re-allocation of resources within the court service would assist in bringing down civil litigation costs, then this is an option which should be pursued. Given the present level of court fees,¹¹² it ought to be possible to provide an efficient service to court users at all civil justice centres.

4.13 Telephone hearings. CMCs due to last less than an hour should be held by telephone, if the court facilities allow.¹¹³ Many, but not all, of the county courts are now able to offer this facility. The county court Annual Reports for 2006/07 and a number of comments in the Phase 1 submissions indicate that overall this service is being well received. There appears to be less frequent use of telephone hearings in the High Court.

4.14 The Designated Civil Judge for London Group of county courts has noted that under this regime fewer cases can be listed and the DCJ for the South Wales Group concurs that telephone hearings are a less effective use of judicial time. However, the extra judicial time must be balanced against the fact that (a) costs incurred by the parties will be less (e.g. because there is no travelling time) and (b) other court resources are saved (e.g. a court room does not need to be used, an usher does not need to be present etc.).

4.15 Listing for trial. The DCA Research calls the diary managers and listing officers the “unsung heroes of the civil court system”. “They will normally list to a trial window of varying lengths of time with fixtures being offered in more complex and longer cases. … This is a job that is more art than science and requires a cool head, good nerves and strong networking skills, including e-mail contacts, with other listing officers, when a case suddenly needs a home at short notice.” This sentiment is echoed in several county court annual reports, which praise their diary manager and listing officers.

110 Indeed, on one view better placed than the judge, because of their intimate knowledge of the case.

111 The concern expressed relates to routine applications, rather than urgent matters. Courts can generally respond rapidly when an application is urgent.

112 As to which see chapter 7

113 Practice Direction to CPR Part 23 paragraph 6.2.

Chapter 43: Case management 4.16 The listing of cases for trial has not generally been a matter of complaint or

concern in the Phase 1 submissions. Trial listing is never easy because of (a) the propensity of cases to collapse at or close to the door of the court and (b) the difficulty of predicting which those cases will be. It seems to be generally accepted that listing officers and diary managers are doing the best job that is practicable with the resources available.¹¹⁴

(iii) Other case management issues

4.17 Sanctions for delay or non-compliance. Phase 1 submissions indicate that many court users and practitioners believe that the court system is failing to impose strict enough sanctions upon offenders. The general perception amongst practitioners appears to be that there is little risk of any adverse order as a consequence of a “minor” delay in filing a document. It is suggested that greater weight needs to be given to the prejudice to the judicial system as a whole suffered as a consequence of widespread delays and disregards for procedural deadlines and the resulting inflation of costs as well as the impact on judicial resources.

4.18 Compliance with court guides? The Chancery Guide states that “failure to lodge skeleton arguments and bundles in accordance with this Guide may result in:

(1) the matter not being heard on the date in question; (2) the costs of preparation being disallowed; and (3) an adverse costs order being made.”¹¹⁵ The other court guides contain similar provision. There are no data to show whether these rules are implemented, but the feeling amongst practitioners is that unless it is a significant default which actually leads to the hearing being vacated, the transgression will go unpunished. What is more likely is that there will be “toing and froing” at the start of the hearing as everyone establishes whether they have the relevant documents.

Furthermore, in many instances, the documents will not have reached the court file, so that the judge cannot be fully prepared.

4.19 In their Phase 1 submission The Association of Law Costs Draftsmen said “It is understood that there are many matters outside the control of solicitors that can force delays in dealing with directions, but there is almost an acceptance that time limits can be extended without any real comeback. Any delay leads to an inevitable escalation of costs.”

4.20 A number of suggestions have been put forward as a means for re-establishing due respect for deadlines set out in the CPR or imposed by way of direction in a specific case, including the following:

x All deadlines imposed by virtue of the CPR shall be amended so as to carry a specified sanction, which will take effect in default of compliance without the requirement for a further application. The right for the parties to apply for relief from sanctions would still apply.

x Where directions refer to “exchange” of documents, in default of one party complying, the party who is able to proceed but does not wish to disclose evidence unilaterally, should be permitted to file its evidence with the court. The defaulting party will then require a court order for an extension of time.

114 This is certainly confirmed by my own experience of working closely with the TCC court manager/listing officer.

115 Paragraph 7.30 of the Chancery Guide.

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4.21 Another possibility would be a declared change of judicial policy¹¹⁶ that as from a stated date, say 1^st January 2010, non-compliance with deadlines or due dates would no longer be tolerated, save in exceptional circumstances. There would then be a series of “hard cases” in January 2010 where parties found themselves struck out or unable to rely upon late evidence etc., and thus thrown back upon their remedies against their own lawyers. This may rapidly lead to a tightening up of practice on the part of all litigators, for the benefit of civil litigation generally. This is not a reform which I am positively advocating, because of the hardship which it would cause to individual litigants and lawyers. However, I raise this as one possible way of dealing with the concerns expressed in the Phase 1 submissions.

5. THE JUDICIARY AND COURT RESOURCING