Costs and Case Management Conference
After a Claim has been issued with the Court and the Defendant has responded by filing and serving their Defence (see our previous posts in the series of Top Ten Tips on Managing a Civil or Commercial Dispute here, the next key stage in the litigation process is the listing of a hearing referred to as the Costs and Case Management conference (a “CCMC”).
This post is a whistle stop tour on what to expect when you are at the CCMC stage of proceedings, whether you are the Claimant or Defendant.
The CCMC is a procedural hearing which will sometimes only be attended by the parties’ legal representatives. The purpose of a CCMC is to allow the Court to exercise its case management powers and give directions to prepare the case for trial. These directions will include requirements and deadlines for future stages of the trial process and the management of costs for each stage. The directions will include, but will not always be limited to, the following:
The stages in the proceedings that are managed by the Court at the CCMC will be covered in upcoming blog posts from the Dispute Management team over the coming weeks, so stay tuned!
Whilst the parties should already have sought to narrow down the issues in dispute, the Court will also use the CCMC as an opportunity to consider the main issues and whether these can be narrowed further.
Prior to attendance at the CCMC, the parties’ legal representatives will have prepared (and attempted to agree) various documents including a Case Summary, Chronology, Disclosure Review Document (in the Business and Property Courts in the High Court) and a bundle of documents relevant to the claim, such as the Particulars of Claim and Defence, that will be of assistance to the Court at the hearing of the CCMC.
Each party will also have to prepare their own Directions Questionnaire (“DQ”) and Costs Budget.
The DQ requires each party to set out information including how many witnesses they want to rely on and how many days are needed for the trial. The main purpose of the DQ is to assist the Court and the parties with agreeing directions for the future conduct of the case to trial. The DQ will be completed by your solicitor with your input.
Legally represented parties are required to prepare Costs Budgets in higher value claims. A Costs Budget is exactly that; a budget on the costs that are estimated to be incurred by each party to prepare the case for Trial. The Costs Budget will contain a budget for legal costs (that is your solicitors fees) and disbursements (which means other expenses that may include barrister’s fees, expert’s fees, court fees and mediation fees as appropriate). The parties’ solicitors are required to try and agree their Costs Budgets with each other before the CCMC. Ultimately the Judge will review both budgets and will make an order as to what is reasonable and proportionate with reference to the complexity and value of the claim. This provides the parties with a clear indication of the likely costs they will each incur in getting the case to trial and also the likely level of costs they may be ordered to pay if they are the losing party. This can encourage settlement.
At the conclusion of the CCMC the Court will make an Order confirming the directions that were agreed between the parties and approved by the Court or made by the Court in the absence of agreement. These directions must be adhered to by all parties.
Top Ten Tips
1. Review. Prior to attending a CCMC you and your legal representatives should carry out a thorough review of your case which should include a review of the available evidence such as relevant documents and potential supporting witness evidence. This will assist in focusing on the stages of the claim and estimating how much time will be required for each stage of the litigation process.
2. The Issues in Dispute. Give consideration to the issues in dispute and any that you consider could be narrowed down in discussions with the other party.
3. The Directions Questionnaire. Complete the DQ as thoroughly and accurately as possible, as this is an opportunity for you to state how you would like the dispute to be managed by the Court.
4. Agree Directions. In advance of the CCMC, the legal representatives of each party should discuss the draft directions with a view to agreeing as many of the directions as possible, such as the date for when Disclosure will be given, when Witness Statements will be exchanged and how many witnesses each party will have permission to file a statement from, whether an Expert is needed and the length of the trial. Your legal representative will engage in these discussions on your behalf and so you should provide input on these issues.
5. The Costs Budget. Provide any information that your legal representative requires to produce a realistic Costs Budget. Try to agree your Costs Budget with the other party to avoid any challenge to it at the CCMC and save costs. It is rare to fully agree a Costs Budget and disputes on costs are common at the CCMC. The Judge has the final say. You will be liable to pay your solicitor the budgeted costs even if you do not recover these costs from the other side, for example if you are the unsuccessful party.
6. Disclosure. When considering and discussing the directions, bear in mind the likely volume of documents you will be required to search and disclose and consider what documents you are expecting to see from the other side. For further information on the disclosure exercise and the new disclosure regime in the Business and Property Courts in the High Court, look out for the next post in this series which is an insight into Disclosure.
7. Teamwork. Your legal representative will prepare/review the various documents that the Court requires for the CCMC. These may require your input so ensure that you are available to provide the instructions that your legal representative will require to ensure compliance with the deadlines for sending the documents to the Court.
8. Applications. Consider with your legal representative if there are any applications that you want to make, such as permission to rely on expert evidence or to amend your Particulars of Claim or Defence, as any suitable applications (that are short and not highly contentious) should be made at the CCMC. (See our earlier post on Interim Applications and Summary Judgment here.)
9. Comply or Apply. Whilst it may be possible (in limited circumstances) to obtain an extension of time to the Directions included in the Order following the CCMC, such as the date for Disclosure of documents, it is important to take all practical steps to comply with the Directions in the first instance. If you fail to do so, this could leave you exposed to making a costly application to the Court for an extension or being barred from relying on documentation (such as a late filed Witness Statement) if the extension cannot be agreed. The tip is to comply or be ready to apply to the Court for an extension or relief from sanctions.
10. Settlement. Once the CCMC has taken place and Costs Budgets and a timetable to trial have been approved by the Court, take advice on whether to make a Part 36 offer to protect your position on costs (see our upcoming blog post ‘Part 36 offers/offers to settle – what is without prejudice?’).
If you are in the midst of or are contemplating taking legal action in respect of a dispute, contact the Dispute Management team at Lupton Fawcett who will be happy to discuss your matter with you and advise you on the appropriate course of action to take.
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