| BAND | CLAIMANT | Up to and including allocation to fast track (40%) | Up to and including filing the listing questionnaire (70%) | Up to 48 hours before the trial (90%) | Trial
| Advocacy fee |
| DEFENDANT | Up to and including allocation to fast track (25%) | |||||
| A | £5,000 ceiling and straightforward | |||||
| B | £5,000 ceiling and additional work factors £10,000 ceiling and straightforward | |||||
| C | £10,000 ceiling and additional work factors |
36. The costs matrix will operate by cases being allocated to a costs band according to the case value and the presence of specific additional work criteria. The district judge will determine whether additional work criteria are present when the defence is filed. Since the criteria for additional work are simple, solicitors should be able to advise their clients on the likely allocation beforehand. Disbursements will be payable in addition to the fixed costs.
Advocacy fees
37. The working group recommended that there should be an advocacy fee covering the immediate preparation for trial (including a conference) and advocacy, payable only in cases which go to trial.
38. The advocacy fee will be based on the same bands as those proposed for solicitors' fixed costs. The Bar has suggested, and I strongly agree, that this should be regardless of the length of the hearing. It will be payable whether the advocate is a solicitor or barrister. A conference, final preparation for trial by the advocate and preparation of a skeleton argument will be included in the advocacy fee, but preparation of bundles and notifying witnesses will fall into the trial stage of the fixed costs. Payment for more than one counsel will not be allowed.
39. At present Law Society rules of conduct provide that where counsel has been instructed, the instructing solicitor is under a duty to attend or arrange for the attendance of a responsible representative throughout the proceedings, except in specified circumstances. The costs of such attendance will be included in the trial stage of the solicitor's fixed costs. The amount included will take into account that a junior member of the solicitor's staff would normally be able to carry out this function. Rules of conduct of this kind impose additional costs on the fast track. I recommend that they should be changed.
Cancelled hearings
40. At present, a considerable proportion of cases settle shortly before trial and very often at the last minute. The working group considered whether cancellation fees should be payable to advocates if trials did not take place. This would be a move away from the current practice that once the brief is delivered counsel is entitled to payment in full even if the case immediately settles (although in practice a reduced fee may be negotiated). I think that the correct approach is to pay for work actually undertaken, such as conferences. The new arrangements should, however, recognise that shorter hearing times will require considerably more preparation by advocates. In straightforward cases this is likely to be undertaken, as at present, just before the hearing, and conferences if required will take place on the day of the trial. In other cases, the advocate will usually arrange a conference with the client and prepare for trial a good way in advance.
41. I propose, therefore, that where a case settles after the brief has been delivered and a conference has been held, advocates will be entitled to receive 40 per cent of the advocacy fee to cover the work done on the conference. However, where the advocate is a solicitor who is a member of the firm which has had conduct of the case, I do not consider that it should be necessary for a conference to be held. I do not, therefore, propose to make any provision for payment for a conference in these circumstances.
42. If the case settles less than 48 hours before the hearing, the solicitor advocate from the conducting firm will be entitled to 40 per cent of the advocacy fee, to cover the preparation that will have been done by this stage. For other advocates, there will be an entitlement to the full fee.
Waiting time
43. I have already set out the importance for the operation of the fast track of using the most effective listing arrangements to minimise the interruption of trial time for urgent business. This approach should reduce the amount of waiting time on the day of hearing. The advocacy fee is intended to be appropriate for all hearings up to one day. I therefore do not consider that it is necessary to make additional payment for waiting time.
Travel time and costs
44. A small amount of travel time and costs to cover time spent travelling to and from court for the trial will be included in the advocacy fee. This is intended to cover the time spent travelling by advocates 'local' to the court, and swings and roundabouts will operate within this amount. Costs associated with longer journeys may be allowed, and further work is needed to establish the amount.
Additional costs
45. The costs matrix covers the core costs of the solicitor in the majority of cases. However, there are some costs which are not suitable for inclusion in the costs matrix, either because they relate to particular procedural stages which will only feature in a small number of cases (such as injunctions) or because they may vary greatly between cases (such as disbursements and experts' fees). While these additional costs will reduce certainty as to the total cost for the client, at this stage in the introduction of the fast track it would not be appropriate to recommend their inclusion in the overall fixed costs. The solicitor will, however, be required to give the client an estimate of experts' fees and of the standard disbursements associated with the particular type of case at the outset of the case. Where there is a written agreement setting out agreed terms of business between the client and his solicitor, it should include an estimate of disbursements. Where the estimate is likely to be exceeded, the client should be informed.
Disbursements
46. Disbursements, including court fees, will be recoverable in addition to the fixed costs. It has been suggested that this might encourage solicitors to use solicitor agents or non-solicitors for work for which payment is included in the fixed costs and then claim the cost as a disbursement, thereby obtaining double-payment. Examples that have been given are where accountants are instructed to carry out simple mathematical calculations within a solicitor's competence, or where enquiry agents are used to interview witnesses. Disbursements will be subject to scrutiny by the court to ensure that any such claims are disallowed.
47. In order to assist in determining the disbursements to be allowed, each party should, at the end of the case, submit a form to the court setting out all disbursements incurred and attaching relevant vouchers. This may then be challenged.
Experts
48. Since the use of experts will be considered in determining whether a higher level of costs is appropriate, it will be particularly important for the rules to allow judges to control effectively the use of experts. It will be important to differentiate clearly between experts and the use of agents for work for which payment is covered by the standard costs. Many respondents have been reluctant to place any limit on experts' fees although there is at the same time concern about the high fees charged. On the fast track this is a particular worry. I recommend that further work should be carried out to establish standard fees for experts' reports. The level of a maximum or standard fee will need to take into account the ability of an opponent to ask questions of an expert.
49. The overall number of experts will be reduced by pre-action protocols and other steps encouraging parties to agree a single expert's report. There will be an overriding discretion to disallow the costs of experts' reports where they are unreasonably incurred. This will apply where it was not appropriate to obtain a report on the particular issue, or where separate reports are commissioned but the district judge considers it unreasonable not to have instructed a single expert.
Split trials
50. There may be occasions, even on the fast track, where an early trial on liability alone may be required but quantum cannot be decided at that stage because of uncertainty over the prognosis. In many cases a trial on liability alone will lead to settlement. If it does not and there is a later trial on quantum alone, there will still be a need for a further advocacy fee and a degree of preparation by the solicitor. In those circumstances, the solicitor's total fixed costs will be increased by 20 per cent.
Interlocutory applications
51. It is of particular importance in reducing the cost of lower value cases that there should, in the main, be no interlocutory hearings. Pre-action protocols, informative claims and detailed defences all have a part to play in making this possible. There may, however, be occasional cases where an interlocutory hearing is necessary, such as where there is an application for extension of the timetable or for relief from a sanction. Because the circumstances will vary, I recommend that the district judge should make a costs order in each individual case and that, if the hearing was occasioned by the default of a party, that party should normally pay the costs forthwith. Such costs orders will be separate from the fixed fee. In such cases, if for example a solicitor has not adhered to the timetable and as a result has to appear before the court, the client should be informed about the costs order against him so that he can apply for a wasted costs order against his solicitor if the solicitor was at fault.
Injunction hearings
52. In paragraph 23, I recommended that non-monetary claims should be assigned to costs band (B). Where an injunction only is sought, those provisions will apply. Where an injunction is linked to a claim for damages, the costs will be determined by the amount of damages recovered (or claimed in the case of a successful defendant).
53. Other claims may involve an application for an interim injunction, usually immediately after the issue of proceedings. I propose that there should be an additional 'bolt-on' fee to cover the immediate preparation for and the hearing of the application. The costs recoverable for the claim as a whole, depending on the stage which the claim reached, would then be determined at the conclusion of the case.
54. However, situations will arise in which the interim injunction effectively resolves the case. Where this occurs before the case is allocated to the fast track, I recommend that a separate fixed fee should apply. Those responsible for implementation will decide what this should be.
Children and patient settlements
55. Where a claim is issued to approve a settlement, the fast track costs regime will not apply since there will be no defence. Where a case is already in the fast track and a settlement is reached which requires the court's approval, I recommend that, in addition to the costs applicable to the stage at which settlement was reached, an additional fixed fee should be allowed to cover the preparation for and advocacy at the hearing to approve the settlement.
Counterclaims
56. In cases involving counterclaims, case value will be determined for the purpose of costs by looking at the value of the claim and counterclaim separately, rather than allowing the parties to ask for the value to be determined on the balance.
Indemnity principle
57. The indemnity principle provides that a party may recover from his opponent only as much as he owes his lawyer. The indemnity principle will need to be modified so that the costs recoverable are the fixed costs, subject to any court order on, for example, interlocutory costs. Thus, the fixed costs will be recoverable even if the solicitor and own client costs would be lower.
Mechanism for ordering the costs to be paid
58. There will no longer be a need for costs payable inter partes to be taxed. Where a case proceeds to trial, the court will certify the total costs, including disbursements at the end of the trial. The order for costs will then be included in the judgment.
Conditional fees
59. The extent to which conditional fee agreements are available will not be affected by the existence of the fast track costs regime. Indeed, their adoption could well be assisted by the ability to base the percentage increase on the fixed costs, thus giving more certainty to the client. A conditional fee agreement for a fast track case will need to set out the relationship between the fixed costs, the likely amount of solicitor and own client costs and the proportion of those costs represented by the success fee if the client wins.
Geographical variation
60. Consideration may have to be given to whether the levels of fixed costs should vary according to the geographical location of the court or solicitor's office.
Litigants in person
61. In chapter 7 I have recommended that there should be a review of the provisions relating to the costs of litigants in person. This review will need to take into account the effect of the fixed costs regime and, in particular, the need to ensure that the total of the litigant in person's costs, plus the cost of any legal advice, does not exceed the total fixed recoverable costs which would have applied had the litigant been represented.
Evaluation and review
62. There will need to be a general and continuous evaluation and review of the operation of the new rules and the costs regime. The levels of the fixed costs should be reviewed each year, and the general operation of the fixed costs regime should be reviewed every three years by a committee representing judges, a representative selection of litigants, consumers and their representative bodies and practitioners. This committee should report to the Lord Chancellor through the Civil Justice Council.
63. To inform the evaluation and review of the costs regime, it will be necessary to collect data on the level of costs recovered in fast track cases, particularly in the first year of operation. Information on costs recovered in cases which settle before trial, on levels of experts and fees and on the type and amount of disbursements incurred will be particularly useful to inform further development of the regime.
Recommendations
My recommendations are as follows.
(1) There should be a regime of fixed recoverable costs for fast track cases.
(2) The guideline maximum legal costs on the fast track should be £2,500, excluding VAT and disbursements.
(3) The costs payable by a client to his own solicitor should be limited to the level of the fixed costs plus disbursements unless there is a written agreement between the client and his solicitor which sets out clearly the different terms.
(4) The costs regime should reflect case value in two bands; up to £5,000 and up to £10,000. There should be two levels of costs within each value band, one for straightforward cases and the other for cases requiring additional work.
(5) The fixed costs should be divided into tranches relating to the stage the case reaches.
(6) There should be a fixed advocacy fee for each band payable in cases which go to trial whether the advocate is a solicitor or a barrister. A cancellation fee should be payable to the advocate to cover work undertaken on cases which settle shortly before trial.
(7) The Law Society's rule of conduct requiring a solicitor to attend trial with counsel except in specified circumstances should be revoked.
(8) The costs of interlocutory hearings, applications for interim injunctions and hearings for the court to approve a settlement should be additional to the fixed costs.
(9) The indemnity principle should be modified so that the costs recoverable are the fixed costs.
(10) There should be further detailed work to establish the levels of the fixed costs, standard fees for experts' reports and an appropriate fee for defended debt cases.
(11) The levels of the fixed costs should be reviewed each year, and the general operation of the fixed costs regime should be reviewed every three years by a committee reporting to the Lord Chancellor through the Civil Justice Council.
Chapter 5 The Multi-Track
Case management (a) fix a case management conference;
(b) issue directions in writing for the preparation of the case;
(c) fix a date for the trial;
(d) specify a period within which it is intended that the trial shall take place;
(e) fix a pre-trial review.
In this chapter I set out in detail the way in which the court will reach a decision on those options and the considerations it will take into account.
A different approach 3. In broad terms, this means that simpler cases will need less of a hands-on approach by the courts and more complex cases will require greater judicial involvement. But whatever the type of management, the parties must co-operate with it. So, in straightforward cases, if standard directions are all that are required, the parties must carry out these directions and not complicate or delay matters; in the heaviest cases, when the court will be seeking to ascertain and refine the issues at an early stage, a case management conference must not be treated as a formality, with the client knowing nothing of what is being done and his solicitors being represented at too low a level.
4. The nature of management required will be decided by the procedural judge as part of the initial scrutiny. I described this scrutiny in the interim report:
Initial scrutiny 6. In less simple cases, he may need to decide first whether there should be an early case management conference or a pre-trial review or both. The judge will have to weigh their advantages as against the expense. Are the directions that could be given going to save time and costs in the long run? Is a conference likely to lead to a settlement? On the other hand are the circumstances such that it is better to leave matters to a pre-trial review when the evidence will have been disclosed and the trial is imminent? In a case of substance, both a case management conference and a pre-trial review will be justified.
7. However, the procedural judge must bear in mind the costs of case management conferences, in terms both of the parties' costs and of court resources, and they should not be ordered unless they would clearly be of value. The need to control the costs of a case is particularly important in smaller value multi-track cases. In such cases the procedural judge should be more willing to consider paper directions, not dissimilar to the standard directions in fast track cases, but with a slightly more relaxed timetable. I envisage that there will be many straightforward multi-track cases of, say, between £10,000 and £25,000, which will not need a case management conference. In paragraphs 29 - 31 below I suggest the development of a 'streamlined procedure' which would enable many smaller and more straightforward cases on the multi-track to be dealt with swiftly and economically.
8. There will be actions, including certain actions now begun by originating summons or motion, in which there will be no need for substantial case management, because it will be possible for the court to determine the case at the first hearing. For such cases, it will be possible for the claimant to indicate that all that is required is a hearing at the outset and, where appropriate, it can then be disposed of at the first hearing. When the claim is issued the court will fix the day for the first hearing and insert it on the claim, or indicate an approximate date, or say that a date will be fixed later. If it is not possible to determine the case at the first hearing, that hearing will in effect be a case management conference at which the court will give directions for the progression of the case. Where the facts are not in dispute it should be possible for there to be standard directions and a standard timetable.
Questionnaires 10. It would be undesirable to lay down fixed rules as to when the parties should file their questionnaires setting out their proposals for the management of the case. In the interests of expedition they should be able to do so at the same time as they file their statements of case. The claimant may however feel that he cannot do so until he knows that the claim is being contested and he has seen the defendant's case. Following helpful suggestions by the Commercial Court Group and others, the questionnaire could indicate:
(a) whether specific disclosure will be sought;
(b) what are the principal issues and whether they are ones of construction, fact, expert evidence or law;
(c) whether any directions concerning factual or expert evidence would be helpful at an early stage;
(d) whether ADR has been or is about to be attempted;
(e) whether there is any way in which the court can assist the parties to resolve their dispute without the need for a trial, or a full trial;
(f) how much time they need for any specific disclosure, witness statements or experts' reports;
(g) when the case will be ready for trial;
(h) the present estimate of the length of the trial;
(i) the costs to date and an estimate of the total costs;
(j) whether there should be a case management conference and, if so, when it is considered it should take place.
At a later stage in the case the court will require equivalent information in a listing questionnaire.
Case management conference (a) identify the key issues;
(b) earmark issues for summary disposal;
(c) explore the scope for ADR or settlement;
(d) give directions as to witness statements, experts' reports and the disclosure of documents, including setting a limit where appropriate;
(e) set a timetable for the case;
(f) consider the trial date or trial window, the date when the listing questionnaire should be sent out, whether there should be a pre-trial review and the estimated length of the trial;
(g) find out what costs have been incurred to date and control likely future costs.
12. A further element of case management, which I discuss more fully in paragraphs 32-34 is that it should be open to the parties and the court to agree that a case can be determined without an oral hearing.
Timing of case management conferences Lists of issues Parties attending case management conferences 16. There may be both practical difficulties and questions of expense in the case of a foreign party (individual or corporate) attending a case management conference. Nor may it always be possible for a representative of a large company or of a government department, for example, to be able to give undertakings at a conference which bind the party. Nevertheless, I am aware of at least one major insurance company which has been able to authorise its representative to enter into settlements at pre-trial reviews. At first sight there is a difference between an international company which is well used to litigation and an individual who is bringing a personal injury claim never having come into contact with the courts before. In the latter case, there is a clear need for the litigant to know what is going on in his case, how much it is all costing and how the court intends to handle the case. However, in the case of large corporations as well, it may be undesirable to leave everything in their lawyers' hands. They must also bear in mind the needs of other cases in the system. Experience in the Queen's Bench Division has shown that requests to adjourn hearing dates which are made in the absence of the parties themselves are seldom renewed when the judge requires the parties to attend such applications. When the parties know what is being done on their behalf and in their name they do not always endorse it.
17. To ensure the effectiveness and emphasise the importance of case management conferences and pre-trial reviews, I believe that it is essential for the lay client to attend, or for someone to attend on his behalf, unless this is very difficult to arrange. Exhortation is not enough. The onus must be on the parties, before the conference, to give very good reasons to the court why they are not attending.
Alternative dispute resolution The timetable 20. The critical date is the trial date. At the meetings which I have held with judges they have made clear their view that fixing the trial date or a trial window is the most effective mode of controlling a case. Research from other jurisdictions where case management is being introduced, such as Ontario, also shows that the earlier in a case the trial date is fixed, the more effectively the case can be managed.
21. I originally suggested that it should not be possible for the parties to agree between themselves that a time limit set by the court should be extended. The specialist groups have all expressed doubts about this proposal. Sometimes there may be good reasons why a party cannot adhere to a time limit. The Intellectual Property Group points out, for example, that in its field there may well be concurrent litigation in other parts of the world and that the timetable of a case in this country may be affected by the progress of a case in another country. But if the court here is made aware of this, it will in many cases be able to set a timetable to take account of the other litigation or adjourn the case to a fixed date at which the situation can be reviewed.
22. There are certain key management stages, or 'milestones', in a case which should be established at the outset and which it should not be possible to move except with the permission of the court. These stages would be the case management conference, the pre-trial review and the trial date. But apart from these key stages the parties would be able to agree changes to the timetable subject to the overriding power of the court to intervene if appropriate. Any such agreement to vary a timetable, and the reasons for it, must be sent to the court (and to the client). Any extension must be for a specific period and the parties should file a new timetable.
23. Where one party seeks an extension of time to which the other does not agree, he may apply prospectively for an extension of time. If that time has passed he would have to apply to the court for relief from the sanction which would be imposed in the event of his non-compliance with the time limit. He would have to satisfy the court that he had complied with other directions and that there was a good reason why he was unable to comply with the direction in question. Save in exceptional circumstances he would also have to pay the other side's costs of the application immediately.
Listing questionnaire 25. The questionnaire should therefore be sent out in sufficient time to allow a pre-trial review to be held, if necessary, in good time before the trial date or window.
Pre-trial review 27. Since January 1995, pre-trial reviews have been held in all Queen's Bench Division cases estimated to last for more than 10 days. The impression is that they have accelerated settlements of some cases and have made for better prepared trials in others. The difficulty has been in trying to arrange for the review to be held by the eventual trial judge. I hope that more widespread case management will assist in overcoming this difficulty by creating more certainty as to which cases will proceed to trial and as to the length of trial. As my reforms take effect I hope this will enable my target of pre-trial reviews by the trial judge to be met more frequently.
The trial Streamlined procedure 30. Furthermore, there is a large class of cases where the value and complexity do not justify hands-on judicial case management. I recommend that, as part of implementation, work should be done to establish a general streamlined procedure which would be applicable to such cases. An important feature of the streamlined procedure would be a system of controlled costs, which, while less restrictive than the fast track, would provide many of the same benefits to parties.
31. I set out in the costs chapter my approach to providing benchmark costs for such cases. These will be predicated on the development of a standard streamlined procedure. I suggest that the court with user groups should be able to provide benchmark costs. First, however, it will be necessary to devise standard streamlined procedures with the assistance of judges and practitioners.
Determinations without an oral hearing 33. The Chancery Group have considered the possibility of paper determinations in this type of case. They suggest that the parties would have to certify that the case was suitable for a paper determination and the court would have to agree. There would be an agreed statement of facts and written arguments on each side. The court would need to be satisfied that all relevant legal issues had been adequately dealt with in the written submissions. If necessary, the judge would be able to call the person named in the written argument to make oral submissions. The group recognised that paper judgments could take longer than oral judgments to prepare, and suggested that the judge should be able to give a short basic judgment which would be expanded only at the request of the parties. The details of the procedure could be fleshed out in a practice direction. The group thought that paper determinations could be beneficial if used properly but could create considerable problems if abused. I agree with their views and suggest that this is a candidate for monitored pilots. The Crown Office Group has made a similar recommendation which I adopt.
34. Further work will have to be done to introduce paper determinations in appropriate multi-track cases.
Consistency 36. I also recommend an end to the practice in some courts of each judge working from his own standard directions. It is not acceptable for judges' approaches to be so different as to lead to significant differences in costs between similar cases. This is likely to result in forum shopping, which must be discouraged. The approach of different judges will, of course, never be identical and the need to handle each case as that case requires means that case management will always vary. However, so far as possible, the initial approach of the judiciary to case management should be the same. At the same time, I do not encourage rigidity in the handling of multi-track cases, but there should be the appropriate degree of consistency. There is still room for innovative approaches to case management, but these must be under the control of the Head of Civil Justice.
Recommendations (1) On the multi-track the nature of management required will be decided by the procedural judge as part of the initial scrutiny once the defence is received. The court can:
(b) issue directions in writing for the preparation of the case;
(c) fix a date for the trial;
(d) specify a period within which it is intended that the trial shall take place;
(e) fix a pre-trial review. (2) Information to assist the judge may be provided by the parties in a questionnaire and called for by the court.
(3) The objective of the case management conference is to set the agenda for the case before significant costs have been incurred and too much time has elapsed. At a case management conference the procedural judge will narrow the issues, decide on the appropriate future work and case management required, set a trial date and a timetable for the case, and consider ADR and the question of costs.
(4) Parties should file statements of issues, if possible agreed beforehand, for the conference.
(5) Where a party has refused unreasonably a proposal by the court that ADR should be attempted, or has acted unco-operatively in the course of ADR, the court should be able to take that into account in deciding what order to make as to costs.
(6) The dates of the case management conference, the pre-trial review and the trial date cannot be changed except with the permission of the court. Parties would be able to agree other changes to the timetable subject to the overriding power of the court to intervene if appropriate, and any such agreement should be notified to the court, with the proposed new timetable.
(7) Applications to vary the timetable must be made within the relevant time limit. If that time has passed, a sanction will apply automatically, unless relief is applied for.
(8) A listing questionnaire should be sent out by the court at a time specified in the initial directions to establish whether directions have been complied with and to inform the decision on hearing time.
(9) At a pre-trial review about eight to 10 weeks before the hearing the judge will settle the statement of issues to be tried and set a programme for the trial.
(10) A general streamlined procedure should be developed with the assistance of judges and practitioners for more straightforward cases on the multi-track. This should involve limited disclosure and expert evidence, a short timetable and limited trial time and a system of controlled costs, which, while less restrictive than the fast track, would provide many of the same benefits to parties.
(11) Particular streamlined procedures should be developed for small medical negligence claims, Crown Office cases and intellectual property cases where there is substantial disparity between the financial status of the parties.
(12) It should be possible for suitable cases to be determined on the statements of case, without the need for an oral hearing, where
this would save time and costs.
(13) The new rules will provide that only the Lord Chancellor and the Head of Civil Justice will be able to issue practice directions to ensure that case management systems are uniform and consistent.
1. There are various options for case management open to the court ranging from light control to full judicial hands-on case management. In reaching its decision on management, the court can take account of the parties' proposals for management and, if it approves, adopt them. It can do any one or more of the following:
2. The multi-track will include a wide range of cases, from straightforward cases just above the fast track limit to the most complex and weighty matters involving claims for millions of pounds and multi-party actions with many claimants. Case management will reflect this. The central principle is that the court will manage every case, but the type of management will vary according to the needs of the case.
"It will determine whether the case can be dealt with by standard directions and timetable, or whether more active case management is required and the appropriate judge for both management and eventual trial. A particularly important part of the process will be to identify those cases which are sufficiently complex to justify individual management from the outset by a more senior judge and those which will need to be tried by a High Court judge." (Interim report, chapter 8, paragraph 3).
5. Case management on the multi-track will start with the court scrutinising the case once the defence is received to determine the choice of track, where the case should be dealt with and the appropriate degree
of management. In straightforward cases, where the procedural judge can see to the end of the case because the main issues are clear and there is no apparent complexity of evidence or multiplicity of issues and little scope for ADR, the procedural judge, having considered any request from the parties for a case management conference, will be entitled to give written directions as to witness statements, expert evidence and disclosure of documents, and fix a 'window' for the trial and direct when the listing questionnaire should be served. It will then be unnecessary for there to be a case management conference, although in some cases a telephone conference may be helpful. As one of the aims of case management is to dispose summarily of weak cases and hopeless issues, in the clearest cases the procedural judge may be able to direct an immediate trial or fix a summary disposal hearing.
9. Although my proposals for case management place greater responsibility for the progress of a case in the hands of the court, it is essential, as the Council of Circuit Judges has pointed out, for the court to have sufficient material on which to base the important early decisions about the handling of cases. This includes the views of the parties on how the case should be managed. The statements of case are not intended to provide all such material. It should therefore be possible for the parties to provide information on matters relevant to the progress of the case and for the court to call for such information by means of a questionnaire. This will avoid the court holding a case management conference simply for the purpose of obtaining information. It will also enable the parties to play a part in the initial decision as to how the case will best be managed. Questionnaires will bind neither the parties nor the court, but I have no doubt that they will often be helpful.
11. At a case management conference the procedural judge should aim to achieve the following:
13. The timing of the first case management conference can be flexible, subject to the principle that its object is to set the agenda for the case before too many costs have been incurred and too much time has elapsed. In more complex cases, it will often be desirable for it to take place before standard disclosure since there is a greater danger of unnecessary time and costs being expended on this, in the absence of judicial control. The Commercial Court and Chancery groups thought that the procedural judge might consider that a case management conference would be more effective after standard disclosure has taken place, because by then the issues will have become clearer. In such cases the conference should be as soon after standard disclosure as practicable. Occasionally it may even be desirable to have a case management conference before the defence has been served, for example in very complex areas such as some Official Referees' cases. In multi-party actions, where it has been necessary for much work to be carried out before the claim can be served, there may well be a case management conference as soon as a multi-party situation is certified, as discussed in chapter 17.
14. The identification and rolling disposal of the issues is a key element in the reforms. It will therefore be necessary for the parties to file statements of issues, if possible agreed beforehand, for case management. Again the approach must be that it is worth spending time in order to save more time. I do not agree with those who have expressed doubt about the value of having lists of issues on the grounds that in a simple case they will be unnecessary and, in a complex case, will take too long to prepare. If it takes a long time to prepare a statement of issues in a complex case it is an indication that the issues do need to be ascertained more clearly. If it is a simple case the statement will not involve more than minimal effort.
15. The conference is a significant opportunity to take important decisions about a case, including the possibility of settlement or referring the dispute to ADR, and to consider the costs so far and the estimate of the future costs. The client must be enabled to know what has happened and be involved in the decisions about the future of the action. The litigation is his responsibility. He has both an interest in being involved and a duty to be involved. The presence of the parties will ensure that the lawyers take the event seriously and prepare for it properly. It was for these reasons that I proposed in chapter 8, paragraph 8, of the interim report that the lay client, or someone fully authorised to act on his behalf, should be required to attend the case management conference and pre-trial review in a multi-track case. The specialist working groups agree that it is something which should be strongly encouraged by the court, although they have expressed reservations about making this a requirement in every case.
18. In the interim report I welcomed the growth of alternative dispute resolution and expressed the view that the court should play an important role in encouraging its use in appropriate cases. I continue to be of that view. I also remain of the view, though with less certainty than before, that it would not be right for the court to compel parties to use ADR and to take away or postpone their right to seek a remedy from the courts, although this approach is being successfully adopted in a number of other jurisdictions. Nevertheless, where a party has unreasonably refused a proposal by the court that ADR should be attempted, or has acted uncooperatively in the course of ADR, the court should be able to take that into account in deciding what order to make as to costs.
19. The court will have control over the timescale of cases from the point at which they are allocated to a track. Cases will always be proceeding on a timetable, whether a standard timetable or a tailor-made timetable drawn up by the procedural judge. The timetable will specify actual dates for each stage and for particular steps such as the exchange of witness statements and experts' reports. There will be no adjournments generally; the court should always fix a date for the next step in the case.
24. Just as the court requires information at the start of the case for initial case management, so too there is a need for further information before trial to confirm that directions have been complied with and to inform the decision on hearing time. A listing questionnaire should be sent out by the court in advance of a pre-trial review if one has been fixed. In other cases the listing questionnaire will indicate whether such a review is required. In straightforward cases the court will need no more than the information in the listing questionnaire, or can request additional information in writing or by telephone. In other cases where more detailed examination is required, a pre-trial review will be necessary.
26. The purpose of a pre-trial review is to prepare a statement of issues to be tried and to set a programme and budget for the trial. It enables the court to check that directions given at case management conferences have been complied with and can also help in promoting settlement. I would expect the pre-trial review to take place about eight to 10 weeks before the hearing. Experience from Wandsworth County Court, which has a system of pre-trial reviews, and in other courts, shows that very often the parties are not ready for the review at that date, let alone nearly ready for the trial. However, such reviews at present are similar to the proposed case management conferences rather than the new pre-trial reviews which I am
recommending. It is important to remember that in the new system the court will already have been managing the case, so that the parties will know what steps they should have taken by the time of the review.
28. An important task at the pre-trial review is to determine the timetable of the trial. A number of people have written to me since the interim report with encouraging examples of better managed trials. Periods for examination and cross-examination of witnesses are fixed in advance. Disruption to the parties' and witnesses' business is reduced and counsel prepare their questions and argument on a concentrated and specific basis. Listing by the court will then be able to be more accurate and precise. A number of solicitors have written to me saying that until they experienced a timetable for a long trial they did not believe timetables could work; they are now convinced of their practicability and benefits. Counsel have said the same. High Court judges and Official Referees, too, have given me examples of trials which have operated successfully with timetables. There is no doubt, however, that fixed timetables for trials impose greater burdens on both judges and practitioners in preparing for and handling trials. I would therefore repeat the recommendation in the interim report that in multi-track trials the court should not normally sit on Fridays. The efficient use of this day will, I believe, lead overall to shorter trials.
29. The needs which underlie the fast track procedure - to know in advance what procedure, timetable and costs will be involved in litigation, and to dispose of a case expeditiously at an affordable cost - apply to all cases. The court will already be able to go a long way to meeting these needs in multi-track cases by the exercise of its powers to manage a case, for example by limiting disclosure and expert evidence, setting a short timetable for the steps that are to be taken before the trial, and limiting the length of the trial. There are a number of areas in which I believe that it is especially important that the court should seek to streamline the procedure. The first is that of small medical negligence claims which fell within the financial limits of the fast track but could not meet the timetable, largely because of the scope of the expert evidence involved. I deal with this in chapter 15. Secondly, Crown Office cases where the applicant is an individual and the respondent a public body (chapter 18). Thirdly, intellectual property cases where there is substantial disparity between the financial status of the parties and the smaller party would find it difficult to bring or defend a claim without the protection of a limited procedure and costs. An example of such a case might be one in which a defendant has stopped infringing the claimant's patent but the claimant nevertheless pursues his claim. Both the Intellectual Property Working Group and the judge of the Patents County Court have been considering my proposals for a streamlined procedure, with benchmark costs. I look forward to their bearing fruit.
32. I also recommend that it should be possible for suitable cases to an oral hearing be determined on the statements of case, without the need for an oral hearing, where this would save time and costs. Appropriate cases would be judicial review or other Crown Office cases, Chancery Division cases such as construction summonses, where the facts are not in dispute and there are no more than one or two easily identifiable points of law.
35. It is essential that there should be effective and consistent case management for the court system as a whole. Unpredictability causes difficulties, especially for those who are not regular litigants. Parties ought not to find themselves disadvantaged because they are unfamiliar with a particular court or judge. At present there is an unsatisfactory proliferation of local practices in county courts, which makes it harder to conduct litigation. The new rules will provide that only the Lord Chancellor and the Head of Civil Justice will be able to issue practice directions.
My recommendations are as follows.
(a) fix a case management conference;