General
A radical feature of the Civil Procedure Rules is the court and court offices’ management of the case. Their involvement is much more significant than is usually the case in Ireland, where the pace of litigation and the way it is conducted is largely in the hands of the parties.
The Court has a wide range of case management powers to procure and direct the way legal proceedings are undertaken. The Court can exercise its case management powers on its own initiative. The Court has power to enforce its case management directions. These powers include penalties in relation to costs and interest and powers to limit or reduce the extent of a claim in the event that the case management directions or protocol procedures are not followed.
Claims are allocated on to different “tracks” depending on their value and complexity. There are three so called tracks, the small claims track, the fast track and the multi-track. The general idea is that smaller claims should be dealt with under a simpler, less elaborate and less costly procedures.
Cases are allotted to the relevant track at the preliminary stage. When a claim is defended, the Court will serve a notice on each of the parties with an “Allocation Questionnaire”. The questionnaire is to be completed by both of the parties and filed with the Court. Both parties have to consult with each other and co-operate in completing the questionnaire. This gives a further opportunity for breathing space to facilitate a settlement. The Court can encourage a settlement.
The allocation questionnaire asks the parties to give reasons why the claim should be held in a particular Court. Parties must specify whether they have complied with the protocols and procedures for the particular cases. If they have not complied, they must explain.
The questionnaire asks for details of witnesses which parties will call and requests details of experts and how they propose to call expert evidence. The parties are to give details of the availability of their expert witnesses and to explain any unavailability. They are asked to specify how long the trial or hearing will last. The parties are to give an estimate of costs incurred and the overall cost of the case. They are also obliged to specify what applications they propose to make. Each is then asked to specify which track they consider appropriate.
Where it is necessary to do so, the Court then holds an allocation hearing. This is an informal hearing based on the documentation filed. Claims less than £5,000.00 will normally be allocated to the “small claims” track. Claims between £5,000.00 and £15,000.00 will normally be allocated to the fast track and claims exceeding £15,000.00 will normally be allocated to the multi track. The Court also to have regard to other factors.
Small Claims Track
The small claims track is intended to provide a proportionate procedure by which most straight forward claims with a financial value of less than £5,000.00 can be decided. There will not be any substantial pre-hearing preparation and formalities. The Court will order standard direction and fix a date for hearing. Some of the procedures are simplified and in some cases Solicitors will not be involved. The costs available to a successful party are limited.
The simple directions in a small claims track Court usually require each party to give copies of all documents to the other including expert reports on which they are relying. The hearing itself is to be informal. In some situations, the Court can deal with the claim without a hearing at all. The Court can make a decision based on statements and documents rather than by hearing oral evidence. The costs recoverable on the small claims track are Courts fees, travelling expenses and loss of earnings. There are limitations on the ability to recover expert witnesses expenses.
Fast Track
When a case is allocated to the fast track, the Court will give directions as to how it is to proceed. A standard timetable of directions is given usually without any Court hearing. The parties are to disclose details of all documentation relevant to the case and to exchange witness statements. A timetable is specifically set in which the following is to occur;
- full disclosure of all documentations upon which parties are relying;
- Exchange of witness statements;
- Exchange of experts reports;
- Completion of questionnaires by Court and;
- A trial if not settled;
- It would be anticipated that this would occur within four to five months.
Standard Directions
The parties are to agree directions in relation to giving of evidence, timetable, time estimate, preparation of documents for the hearing. The parties have to agree a bundle of documentation to be used at the trial and this must contain a case summary not less than 250 words outlining the matters in dispute and referring to the appropriate documentation.
The exchange of witness statements and reports is more radical and far reaching than would apply in Ireland. The evidence which the parties propose to prove at a trial by witnesses are to be set out in the witness statements and reports. The evidence must be simultaneously exchanged.
The Court will not allow experts to give oral evidence unless it is in the interest of justice to do so. Therefore in the fast track, expert evidence will usually be given by written reports only. The Court may order a single joint expert to be appointed rather than allowing each side to appoint their own.
Once all information has been exchanged, each party must file a checklist and listing questionnaire. This would usually be done about 8 weeks before the trial date or trial period. The listing questionnaire will enable the Court to fix the date, length and place of the trial. This will usually be fixed about 3 weeks or so in advance.
Multi-Track
Cases of value of more than £15,000.00 will usually be allocated to the “multi track”. Where cases are allocated to the multi track the Court will give directions for the management of the case and set a timeframe or fix a case management conference. The trial will generally be about 30 weeks after the initial allocation.
In a straightforward case, the Court may give directions without having a case management conference. The directions will require the parties to a disclose documentation, to disclose witness statements, give direction on a joint expert or if experts are not agreed, to direct a discussion and may list a case management conference. Alternatively the parties may agree the directions and procedures themselves.
Where the Court feels a more hands on approach is needed, it will hold a case management conference at which it will review the steps the parties have taken and decide what further directions are required. The case management conference will consider whether the parties have clearly stated their case, whether further disclosure of documents is necessary, what expert evidence is necessary and what arrangements should be made in relation to experts generally.
The case management hearing will not be a formal Court hearing and will be attended by the Solicitors or representatives only.
A pre-trial checklist and questionnaire must be filed. This must be done not later than five weeks before the trial date. Once the Court has considered the pre-trial checklist, it will set a timetable for the trial unless this has already been fixed. It will order the bundle of documents to be used at trial to be prepared.
In the fast and multi track cases the parties must state in their pre-allocation and pre-trial checklist listing questionnaires an estimate of costs. This is to inform the other party of the potential liability in respect of costs and to enable the Court to decide what Order to make on costs.
Group Litigation
The English Civil Procedure Rules allow for a group litigation order a “GLO”). This is intended for large scale litigation involving multiple parties. The purpose is to ensure that all claims are properly co-ordinated.
A GLO Order might be suitable where say a large number of claimants have been damaged by some particular event, for example an environmental spillage or a pharmaceutical claim where multiple parties have been affected.
Where a GLO is ordered a register is established of all the claims that form part of it and a direction is made how the GLO should be published. The Court will publish a date by which those wishing to take part in the GLO should register.
All claims within the GLO are allocated to the “multi track”. They are managed by a single Court which has power to make directions to ensure the litigation is handled effectively. A managing judge, with overall responsibilities for the claim is appointed. A single solicitor may be appointed as the lead solicitor.
In order to reduce duplication, the Court may order group particulars of claims to be prepared. The allegations common to all claims are set out in the main body of the document with the facts relating to individual claims being contained in subsidiary parts.
A judgement or order that is made in relation to any claim in the register will be binding on all those parties who are on the register at the time it is made. It is for the Court to direct whether and how an order should affect claims which join the register after it was made.
