These
obligations are mandatory in each case. The court ‘must’ seek
to give effect to and further the overriding objective,
and ‘must’ do so by ‘active’ case management. It is the
elevation of these aspirations into regulatory requirements
in order to achieve the overriding objective that is the
hallmark of the reforms themselves.
Rule
1.4 contains a list of 12 matters which ‘active case management
includes’. These constitute a checklist to be applied in
each case subject to the court’s scrutiny and management.
Their nature serves to emphasise the ‘active’ nature of
the management required, and the obligation to intervene
and exercise initiative in the furtherance of the overriding
objective. Such an approach is required from the very outset,
as demonstrated in particular by the following provisions
in rule 1.4(2):
b)
identifying issues at an early stage
c) deciding
promptly which issues need full investigation and trial
and accordingly disposing summarily of the others
d) deciding the order in which issues are to be
resolved
g) fixing timetables or otherwise controlling the
progress of the case
l) giving directions to ensure that the trial of
a case proceeds quickly and efficiently.’
These
requirements are to be discharged by use of the court’s
case management powers contained in Part 3, including its
power to strike out a statement of case, its power under
Part 24 to give summary judgment against a claimant or
defendant, as well as its powers under Parts 32 and 35
in relation to evidence in general and expert evidence
in particular.
Furthermore,
there is the residual power under rule 3.3(2)(m) to ‘take
any other step or make any other order for the purpose
of managing the case and furthering the overriding objective.’
These
powers define the court’s role of proactive case management
and, therefore the substantial obligations upon it throughout
the duration of a case from inception through allocation,
at any pre-hearing stage, at listing and at trial. Each
stage requires positive consideration of separate questions.
All require the application of the overriding objective
and the implementation of the duty to undertake active
case management.
4.2 Pre-allocation Scrutiny
The
relevant provisions are continued in Part 26 and Practice
Direction 26 (‘PD26’), which provide for automatic transfer
of certain defended cases and the allocation of cases to
one of the three management tracks.
Pre-allocation
scrutiny is a vital stage requiring rigorous investigation
to ensure compliance with the Rules, that the issues are
identified and that the appropriate orders are made in
relation to both allocation and directions.
Consideration
is given below to a number of situations encountered at
this stage.
4.2.1
One or both parties request a stay
The
effect of rule 26.4 is mandatory where all parties request
a stay: the court ‘will’ direct that the proceedings be
stayed for one month. The claimant must tell the court
if a settlement is reached (rule 26.4(4)), but not if no
settlement is reached. In that event, the court ‘will give
such directions as it considers appropriate’ (rule 26.4(5)).
The mere joint request for a stay does not exempt the parties
from the requirement to file completed allocation questionnaires.
Power
to extend the stay is contained in rule 26.4(4). The procedure
and the information which must be given are set out in
PD26 paragraph 3. The court will need to be assured that
any further stay is justified and in accordance with the
overriding objective and the court’s duties, and will be
astute to avoid any attempt to procure delay.
4.2.2
The fee is not paid
On
occasions, files may be referred because
of non-payment of the ‘allocation fee’, whether by the
claimant or Part 20 claimant. The relevant provisions are
in rule 3.7.
The
requirement in rule 3.7(2) is for service of a notice requiring
payment of the fee with the subsequent default provision
in rule 3.7(4) whereby the claim shall be struck out automatically.
There
is provision for relief in rule 3.7(7), but in conditional
terms only - the fee must be paid or the exemption evidence
filed within two days of the order granting relief.
The
fee is payable whether or not an allocation questionnaire
is filed. Dispensing with the questionnaire does not dispense
with the fee. It is not so much an allocation fee but a
fee payable at that stage by virtue of the fees orders
applicable to the High Court and county court.
4.2.3
No allocation questionnaires or only one filed
In
that event, the provisions in PD26 paragraph 2.5 apply.
The file will be referred to a judge who, when neither
party has filed an allocation questionnaire, will ‘usually’ make
an order striking out the claim and any counterclaim unless
questionnaires are filled within three days from service
of the order. Note that this is not a prescribed order,
and a different one may be made. There may be circumstances
in which the three-day period may be considered too short.
Where
one party only files an allocation questionnaire, the options
are set out in PD26 paragraph 2.5(2) - either allocating
if there is sufficient information, or ordering an allocation
hearing.
4.2.4
Inadequately completed allocation questionnaires
In
PD26 paragraph 2.3 there is an obligation upon the parties
to ‘consult one another and co-operate in completing the
allocation questionnaire and giving other information to
the court’.
PD26
paragraph 2.2 sets out what a party should do if he wishes
the court to consider information which may affect allocation
or case management. PD26 paragraph 2.3(2) obliges the parties
to ‘try to agree the case management directions they will
invite the court to make’.
Vague
and non-committal information does not satisfy the duty
of the parties to help the court, and is likely to frustrate
the court’s case management duties. These are crucial obligations
upon the parties and the court will need to be equally
astute in relation to default or non co-operation which,
if it results in a hearing, will also result in a costs
sanction.
4.2.5
Further information necessary
There
is power in Part 18 enabling the court ‘at any time’ to
order a party to ‘clarify any matter which is in dispute’ or ‘give
additional information in relation to any such matter’.
Rule
26.5(3) contains specific power to order the provision
of further information ‘before deciding the track to which
to allocate proceedings or deciding whether to give directions
for an allocation hearing to be fixed’.
If
the detailed scrutiny of the statements of case and allocation
questionnaires at this stage raises the need for the court
to make an order to enable it to allocate, then, in accordance
with PD26 paragraph 4.2(2), ‘it will generally make an
order under rule 26.5(3) requiring one or more parties
to provide further information within 14 days’.
It
is crucial to the proper exercise of the managerial function
that the court has all of the information it needs and
that the parties’ cases are clear and free from the obfuscation
of old. If not, orders must be made at this stage.
4.2.6
Statements of case incomplete
Consideration
should be given to the requirements in Part 16 in relation
to both parties’ statements of case. Note in particular
the obligations in:
Incoherent
claims and bare denials are examples of statements of case
which might be struck out wholly or in part. There is the
option of giving the offending party the opportunity of
providing further information or correcting the omission
first.
These
are crucial considerations in relation to the early identification
by the court of the issues in the case and it will, therefore,
insist upon compliance with the rule.
4.2.7
Is transfer required or appropriate?
The
provisions in rule 26.2 for automatic transfer of certain
defended cases are subject to four requirements and, in
particular, that the claim is for ‘a specified sum’ and
that the defendant is ‘an individual’. Whilst this is an
automatic process, has a case been retained contrary to
these provisions?
There
is need, also, to consider the general provisions in Part
30 in relation to transfer between county courts or between
the High Court, and county court or within the High Court,
and whether the court should exercise its powers at this
stage. The criteria are set out in rule 30.2.
The
provisions in the County Courts Act 1984 and the High Court
and County Courts Jurisdiction Order 1991 in relation to
transfer still apply and the article 7(5) criteria (financial
substance, importance, complexity and expedition) require
consideration, remembering that expedition alone cannot
be relied upon.
If
a case is to be transferred, provision must be made by
the diary manager for its listing at the receiving court.
There is a practical benefit in early transfer.
4.2.8
Statements of truth have been omitted
Part
22 requires that a statement of case be verified by a statement
of truth. Rule 22.2(2) provides that ‘ the court may strike
out a statement of case which is not verified by a statement
of truth’. This novel requirement reflects a specific recommendation
in Access to Justice, that there should be ‘a declaration
by or on behalf of the litigant of belief in the accuracy
and truth of the matters put forward’. How this requirement
should be enforced will be a matter for consideration in
each case but it is not to be ignored.
The
statement of case remains effective unless struck out,
but the party may not rely on the statement as evidence
of any of the matters set out in it (rule 22.2(1)).
It
would be highly unlikely that an order would be made striking
out a case without affording a party the opportunity to
correct the omission.
4.2.9
Should the case be disposed of summarily?
PD26
paragraph 5.1 reflects rule 1.4(2) as follows:
‘Part
of the court’s duty of active case management is the summary
disposal of issues which do not need full investigation
and trial’ there are powers under rule 3.4(2) to strike
out a case where ‘the statement of case discloses no reasonable
grounds for bringing or defending the claim’, or when the
case ‘is an abuse of the court’s process or is otherwise
likely to obstruct the just disposal of the proceedings’ and
to give summary judgment under Part 24.
The
remedy is available to claimant or defendant on the ‘whole
of a claim or any particular issue’ if they have ‘no real
prospect’ of succeeding on or successfully defending the
claim or issue. The test is no longer whether there is
a ‘triable issue’, but whether there is a ‘realistic,’ as
opposed to fanciful, prospect of success (Swain v. Hillman,
The Times, November 4, 1999).
PD24
paragraphs 4 and 5 confirm the orders the court may make
in relation to summary judgment and that where it appears
possible but improbable that a case will succeed, a conditional
order may be made.
Scrutiny
requires consideration of whether the statements of case
warrant the exercise of these powers in pursuance of the
court’s obligations in relation to active case management.
4.2.10
Orders by the court of its own initiative
These
powers are exercisable by the court on application or of
its own initiative (rule 3.3(1)). If so doing, the court
may give any person likely to be affected by the order
an opportunity to make representations (rule 3.3 (2) and
(4)).
Such
an order must contain a statement of the right of a party
affected by it to apply to have it set aside, varied or
stayed (rule 3.3(5)). The application must be made in accordance
with rule 3.3(6).
4.3 Allocating to track
4.3.1
General
Rule
26.7 is concerned with allocating to track, and the specified
matters for consideration are set out in rule 26.8(1).
A
claim with no financial value will be allocated to the
most suitable track, again by reference to the rule 26.8
criteria (rule 26.7(2)).
There
is no power to allocate to a lower track without the parties’ consent
(rule 26.7(4)). However there is no such restriction precluding
transfer upwards of a case.
4.3.2
Valuing the claim
This
is the function of the court. Whilst the parties’ views
will be an important factor, the decision is for the court
(PD26 para. 7.5).
Rule
26.8(2) imposes the obligation upon the court and specifies
four items to be disregarded: any amount not in dispute,
interest, costs and any contributory negligence. PD26 paragraph
7.4 deals further with and defines ‘any amount not in dispute’.
Where
there is more than one claimant, the claims will not generally
be aggregated. The largest will generally be determinative
(see rule 26.8(3) and PD26 para. 7.7).
Where
the court is not satisfied that the value is as a party
claims it to be, it will assess it and allocate accordingly,
leaving that party to seek to set aside the allocation,
or it will order further information from that party under
rule 26.5(3) (see PD26 para 7.3(2)).
4.3.3
Is a hearing necessary?
PD26
paragraph 6.1 provides that the court will only hold a
hearing of its own initiative if it considers it necessary
to do so. This again reflects the obligations of active
case management and in particular the obligation in rule
1.4(2)(j) to attempt to deal with the case without requiring
the parties to attend court.
4.3.4
Sanctions
PD26
paragraph 6.6 specifically provides for the sanctions the
court will usually impose in the event of default in connection
with the allocation procedure. Costs will usually be ordered
on an indemnity basis and summarily assessed and made payable
forthwith or within a fixed period. The court may also
provide for strike out in default of payment.
4.4 Allocation to the small claims track
Rule
26.6 provides that the small claims track (SCT) is the
normal track for any claim which has a financial value
of not more than £5,000 (rule 26.6(3)).
There
are special provisions in relation to personal injury claims
the effect of which is that the SCT is the appropriate
track only if the overall value does not exceed £5,000
and the personal injury element is not more than £1,000.
The personal injury element means for this purpose damages
for pain, suffering and loss of amenity; anything else
is excluded (rule 26.6(2)).
Similarly,
in any claim by a tenant against a landlord which includes
a claim for the performance of repair works, the SCT will
be the normal track only if the value of those works does
not exceed £1,000 and the financial value of any other
claim for damages does not exceed £1,000. There is a separate
exclusion from the SCT of claims by a tenant against a
landlord for harassment or unlawful eviction (rule 26.7(4)).
There
is a provision in PD26 paragraph 8.1(1)(d) that a case
involving a disputed allegation of dishonesty will not
usually be suitable for the SCT.
PD26
paragraph 8.1 gives general guidance about the small claims
track. It is intended to provide:
‘a proportionate procedure by which straightforward claims with
a financial value of not more than £5,000 can be decided
without the need for substantial pre-hearing preparation
and the formalities of a traditional trial.’
Suitable
cases will include consumer disputes, accident claims,
disputes about the ownership of goods, and most disputes
between a landlord and a tenant other than those for possession.
Where
the parties consent to allocation to the SCT, notwithstanding
the value of the claim, it remains a matter for the court
to decide whether that is appropriate (PD26 para. 8.1(2)(b)).
4.4.1
SCT directions
Normally,
the hearing time will not exceed a day. The obligation
is upon the court to give case management directions to
ensure the case is dealt with in as short a time as possible.
Those directions will generally be given upon allocation.
The
directions which may be given are specified in Rule 27.4.
There are four options:
1.
standard directions with a date for final hearing;
2. special directions with a date for final hearing;
3. special directions with provision for further
directions no later than 28 days afterwards;
4. the court may give notice of its proposal to
deal with the case without a hearing and invite the parties
to agree.
Appendix
A to PD27 prescribes standard directions for use generally
and in road traffic claims, building disputes, contractual
claims, tenants’ claims and holiday and wedding claims.
4.4.2
Preliminary hearings
When
may or should the court hold a preliminary hearing? Rule
27.6 provides that it may do so only where special directions
are necessary and it appears necessary for a party to attend
court to ensure he understands what he has to do to comply,
or to dispose of the claim summarily where a party has
no real prospect of success or
by striking out a statement of case or part of it.
The
court must consider the desirability of limiting expense
to the parties.
4.4.3
Disclosure
Part
31 does not apply to the SCT (rule 27.2(b)). What governs
disclosure in the SCT are the provisions in rule 27.4 relating
to ‘standard’ and ‘special’ directions.
Standard
directions will include provision for filing and service
of copies of all documents to be relied upon at least 14
days before the hearing.
Careful
consideration is necessary at the allocation and directions
stage, therefore, as to what, if any, specific special
directions may be necessary in a given case for disclosure.
Where
the case is one in which there are likely to be certain
important documents, a bespoke order will help the small
claims track litigant as well as the court and should always
be considered.
4.4.4
Experts
By
virtue of rule 27.2, the only rules in Part 35 which apply
to the SCT are rule 35.1 (duty to restrict expert evidence),
rule 35.3 ( experts - overriding duty to the court), rule
35.7 (court’s power to direct that evidence is to be given
by a single joint expert) and rule 35.8 (instructions to
single joint experts).
However,
rule 27.5 places an embargo on expert evidence in the SCT
in any form without the permission of the court.
The
vital considerations are therefore whether expert evidence
is reasonably required to resolve the proceedings. What
lies at the heart of the dispute? Is it really an issue
about whether the work, if performed as claimed, was in
breach of contract, or is the issue one of fact about the
performance? If the parties disagree about remedial costs,
does the court reasonably require an expert to resolve
the issue or can it reach its conclusion without expert
advice and thereby discharge its obligations to restrict
the evidence, save expense and deal with the case in a
way which is proportionate?
If
reasonably required, the power exists to direct that evidence
be given by a single joint expert in accordance with the
provisions in rules 35.7 and 35.8. What in the particular
circumstances is the reasonable and proportionate response?
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