Purpose
In commercial litigation, case management makes provision for two case management conferences - aka directions hearings:
- first case management conference: after the Defence has been filed; and
- second CMC: shortly before the trial, which is known as a pre trial review.
The purpose of the pre trial review makes sense once you know that the first case management conference is all about, along with the trial.
There’s no reason why there may not be more case management conferences in a case, if the court believes that is required to properly manage the case.
What is a Case Management Conference?
Case management conferences are a fundamental part of the management of commercial litigation.
They’re hearings before a court – all of the parties to the litigation attend – and are used by courts to get the parties ready for the trial.
To do so, the court:
- reviews the litigants’ compliance with directions made at previous directions hearings (if any)
- looks ahead to see what needs to be done for the particular litigation for the parties to be ready for trial
- makes orders – case management directions - to require the parties to take steps to further prepare for the trial
And it exercises its broad case management powers to do so.
So case management hearings end with the court making case management directions, if they’re needed. They usually are.
Case Management Directions: Preparation for Trial
By completing the different stages of the litigation - the theory is that the parties will be properly prepared for the trial to be heard.
That requires compliance with the directions made at directions hearings.
In the vast majority of cases, it works because there are consequences for serious non-compliance with case management directions.
Readiness for Trial
It’s in the interests of all involved that the parties are ready for the trial.
It’s only fair to both parties to:
- have a good opportunity to prepare for the trial
- have their disputes resolved fairly by the court.
That’s what courts are there for: to set up a fair hearing and resolve disputes fairly, after each party has presented its case.
When the parties aren’t prepared, then the trial can be seen – on one view - not to be fair.
Limits to Opportunities to Prepare
There are limits to what a court will allow for a party to not do what they are ordered to do to prepare for the trial.
If a party has been given the opportunity to prepare for the trial – even every opportunity – and doesn’t do so, a court unlikely to:
- allow more time to prepare
- adjourn the trial, especially when the trial date has been fixed.
That’s because courts require parties to comply with the timetable set out in the case management directions.
Case management directions are after all, court orders.
Courts expect court orders to be complied with by parties to litigation.
What are Case Management Directions?
Case management directions are a series of steps set out in the form of a court order which sets the timetable for what needs to be done to step through the distinct stages of litigation.
They’re the end result – or deliverable - of a case management hearing.
Depending on the case management track that the case has been allocated (fast track or multi-track), those stages will include some or all these steps:
- Disclosure
- Witness Statements
- Expert Evidence
- Pre Trial Review
- the Trial and its expected duration, expressed in a number of days
The trial is set by fixing:
- one or more specific dates for the trial, or
- a date range within which trial will take place: ie a trial window (think weeks), at a later date by the court. If it is not done already, it is likely to be done at the pre-trial review.
(“listed” in this context means that a case has been placed in a list of cases to be heard by the court on a specified day. That’s the job of the Listing Office of the particular court, aka “Listing”)
(The steps in bold will be fixed in any litigation case on the fast track or multi track. They’re indispensable to a fair trial)
Allocation: Before the Initial CMC
The first case management conference hearing is necessary when the parties aren’t able to agree to the case management directions at the time Directions Questionnaires are filed.
Before the first case management conference is fixed for hearing, the court sends what are known as “notices of proposed allocation” to each of the parties to allocate the case to a case management track.
Notices of proposed allocation:
- require the parties to complete:
- Directions Questionnaires
- Disclosure Report (multi-track only)
- Electronic Documents Questionnaire (multi-track only), and
- require the parties to try and agree case management
Depending which court the litigation is being heard in, notices of proposed allocation usually include directions to the parties (directions are court orders), such as:
“(2) It appears that this case is suitable for allocation to the [fast track | multi track].
If you believe that this track is not the appropriate track for the claim, you must complete box D2 on the Directions Questionnaire (Form N181) and explain why.
(3) You must by [specific date]:
a) complete the Directions Questionnaire (Form N181), file it with the court office at [address] and serve copies on all other parties
and b) attempt to agree directions with all other parties
and c) file proposed directions (whether or not agreed) with the Directions Questionnaire."
When parties comply with these orders, there’s a better chance:
- the case management directions will be agreed
- a case management conference hearing will not be required at all, and
- if they’re not agreed, then there will only be limited parts of the directions which aren’t agreed.
That means that the case management conference hearing before the court either won’t be necessary or will be quicker. Either way, the parties save legal costs in the litigation if they’re legally represented.
Directions Questionnaires: Close Up
All parties to a litigation case are required to complete a directions questionnaire and file it with the court by the date designated.
Case Management Track: Multi Track
When a case is destined for the multi track, a series of other documents are required to be prepared, exchanged with the other litigants and filed as well.
These documents are geared to:
- identify the fundamental issues in dispute between the parties, with a view to ensuring that the case progresses in accordance with the directions issued in the proceedings.
- assist the court obtain an indication of the scope and scale of the case, and what case management directions are likely to be required as a consequence.
They are:
- Disclosure Report (Civil Court Form N263), which are about identifying the location of documents so that the appropriate order for Disclosure can be made
- Electronic Documents Questionnaire (Civil Court Form N264): to inform the court of the location of electronic documents
They’re read in the context of the Claim Form, Particulars of Claim, Defence, requests for further information and clarification, and any other statement of case, such as a counterclaim.
Also, because judges have so very much experience in litigation, they can sometimes see what will unfold from what is said in those documents alone.
The end point for the case management conference are case management directions.
Standard Case Management Directions
The standard case management directions (they’re different for the fast track and multi track) are the starting point that the court works from to decide what directions need to be made to close the gap between:
- where the parties are at the time of the case management conference, and
- their readiness for the trial.
Overview: Different Case Management Tracks
Directions are
The standard directions for the:
- fast track cases have a compressed timetable.
The questions of facts and of law which need to be decided at the trial aren’t expected to be complicated, or require a significant amount of time.
One of the major factors in a case qualifying for the fast track is the length of the trial. It allows trials of up to one day, not more.
A one-day trial is usually considered short.
- multi track cases allow more flexibility and usually longer time periods for disclosure, witness statements and expert evidence (if needed) to take place.
Different courts have their own versions of standard directions for the multi track:- County Court Standard Directions
- High Court Standard Directions: Each Division of the High Court (and the different Lists within them), have their own standard case management directions. The relevant Court Guide is the place to start to try and find the current version.
The date for the trial is also likely to be further in the future the longer that is estimated for the trial.
Standard case management directions are intended to be the starting point, not the final result.
The changes made to the standard directions will depend on the particular case and what is required to get the parties to a point where they are ready for the trial.
Reaching Agreement: Directions
As mentioned above, the parties are required to negotiate and attempt to agree case management directions when the notice of proposed allocation is received from the court.
Negotiating the directions mirrors what happens when the parties engage in negotiations after an application notice is served.
In many cases, the case management directions can’t be agreed, or are not acceptable to the court.
In that case, once the court has received the Directions Questionnaires, it considers:
- the documents listed above
- with the draft case management directions submitted by the parties
- and makes up its own mind about the order to make.
Cases on the fast track are more straightforward than those on the multi-track.
Once the qualifying criterion for the fast track are exceeded, a case may be re-allocated to the multi-track.
Case Management: Multi-Track
With the documents mentioned above completed by the parties, courts are in a better position to assess the gap between:
- the state of preparation of the parties at the time of filing the Directions Questionnaire and
- what needs to be done for the parties to be in a position to be ready for trial and to decide what the parties to be ordered to do, in respect of:
- documents that the court may wish to see be available for inspection, including witness statements and experts’ reports
- the classes of documents that ought to be made the subject of disclosure
The relatively short period of time allowed by the fast track to get to trial will rarely be adequate for larger cases. They are allocated to the multi-track.
Case Management Conference Hearings
If the first case management conference is required, the court will decide what the case management directions will be.
Ideally, case management directions are fixed for litigants to carry out events up to:
- the trial, or
- some other stage of the proceedings (see above), such as the pre trial review.
Cases on the multi track are more likely to give rise to questions such as:
- Statements of Case:
- amendments required to the Particulars of Claim or the Defence in the litigation, so that the court and the opposing party can properly understand the other side’s case
- the arrangements which should be made about the giving of further information and clarification
- Structure of Trial: whether:
- it would be appropriate and save costs to order a split trial or the trial of one or more preliminary issues.
- the trial should be spilt, and how this might be arranged in terms of the issues to be heard
- a trial for liability on the claim and any counterclaims should be:
- heard separately, or
- together with an assessment of the compensation which should be paid
- Disclosure:
- the classes of documents which must be disclosed
- special categories or classes of documents which need to be disclosed to facilitate a fair trial
- Expert Evidence:
- the fields of expert evidence required
- the expert evidence that may be required, and:
- how and when that evidence should be obtained and disclosed
- questions to be put to experts
- Final Preparations for Trial for:
- a further case management conference
- filing pre-trial checklists and a pre trial review hearing
- a trial window
These can exist for the fast track as well. Again, the greater the complexity of the case, the more likely it will be shunted to the multi-track.
Case management directions require preparation of:
- a case summary, preferably agreed with the other parties to the litigation
- draft directions for consideration of the court
- a list of issues
- sometimes, a procedural chronology
Draft Case Management Directions
Case Management Directions are just a timetable for the partied to adhere to get them ready for the trial.
The main factors that usually affect timings in case management directions include:
- The location of documents required for disclosure, and the time needed for a reasonable search (assuming standard disclosure is ordered)
- the complexity of the expert reports required
- number of witnesses
- estimated length of the trial
- availability of the court to list the trial for hearing. The longer the trial, the more in the distant future the court is likely able to list it.
Consent to Case Management Directions
The parties may consent to directions that would otherwise be made at a CMC.
However, courts:
- retain the power with its case management powers under the Civil Procedure Rules
- may still require the parties to attend court for the case management hearing
- do what is seen as required to ensure the case is ready for trial.
Case Summaries
Case summary are short and succinct summaries of:
- the background facts of the case and
- the key issues in dispute between the parties.
They’re intended to be a reference document for Court to read prior to hearings of applications by a litigant and for the trial.
The Judge does not then need to read the statements of case to see what the case is all about.
The case summary should be prepared in a non-contentious or neutral way to promote agreement between the parties as to its terms.
In civil cases, a case summary is meant to:
- not normally be no longer than 500 words;
- set out the causes of action alleged (such as breach of contract, copyright infringement, fraud, as the case may be)
- set out a brief chronology of the claim, issues of fact which are agreed, in dispute and the evidence needed to decide them, and
- be prepared by the claimant in the first instance and agreed with the defendant prior to filing.
When the parties agree to the terms of a case summary, it will prevent the court having to read two case summaries.
Case summaries are prepared on the standard court form for the proceedings and headed "Case Summary", with numbered paragraphs.
Failures to Cooperate / Failures to Appear
If one of the parties doesn’t complete the Directions Questionnaire or cooperate with the other parties to the case to agree case management directions, the environment is ripe for the court to make case management directions disregarding what the unresponsive party may wish.
You lose any influence over the case management directions.
When that happens, it’s an own goal.
It also chalks up an instance where the party has not complied with an order of the court. Which will make it harder for the party to obtain an extension of time to comply with case management directions when they really need it.
That’s 2 – 0, against you.
And that can easily become 3 – NIL, because applications for relief from sanctions must be made under CPR 3.8 and CPR 3.9 to recover the position of the defaulting party in the case.
Closing Comments
In commercial litigation, the first draft case management directions are required to be filed at the same time as the Directions Questionnaires of the parties.
By requiring the parties to prepare Case Management Directions and file them with the court on the same day forces the parties to make arrangements towards the trial, and reduce what should be unnecessary involvement of the court in the litigation.
Even if agreement is not reached by the parties on the terms of the timetable for the case and case management directions, the parties will likely reach a point and have discussions prior to them being filed to reduce the items in dispute in the directions by the time they reach the court.
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