Under the CPR, responsibility for case management belongs largely to the court and the judge enjoys considerable powers, including control over the issues on which evidence is permitted and the way in which evidence is to be put before the court.
Nevertheless, there is some scope for the parties to vary by agreement the directions given by the court, provided that such variation does not affect any key dates in the process (such as the date of the pre-trial review or the trial itself). In certain business disputes, the parties also have the option of bringing proceedings under the Flexible Trials Scheme (see question 6) which allows the parties to adapt various procedures by agreement.
The CPR impose a duty on parties to assist the court in active case management of their dispute.
Compliance with rules and sanctions for non-compliance
Following the Jackson Reforms, it is extremely important to comply with all rules and orders the court prescribes as any errors and oversights will not be easily overlooked, and it may be difficult to obtain relief from sanctions imposed for non-compliance.
The Court of Appeal decision in Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 was the high point in the court’s tough new approach to granting relief from sanctions, with parties being refused relief for minor procedural breaches.
However, the test was set out by the Court of Appeal the following year in the leading case of Denton v TH White Ltd  EWCA Civ 906. Under this three-stage test, the court will consider the seriousness of the failure to comply, why the default occurred, and will evaluate all the circumstances of the case to enable the court to deal justly with the application for relief. The underlying rationale behind the restatement of this test was to reinforce the understanding among litigants that the courts will be less tolerant of unjustifiable delays and breaches of court orders.
Although the courts continue to take a strict approach when deciding whether to grant relief from sanctions, parties will most likely not be allowed to take their opponents to court for minor procedural breaches. The court will not refuse relief from sanctions simply as a punitive measure (Altomart Limited v Salford Estates (No. 2) Limited  EWCA Civ 1408).
Nevertheless, strict adherence to the timetable is required by all parties, lest the court impose costs sanctions. The High Court decision in Kaneria v Kaneria  EWHC 1165 (Ch) (as applied recently in Peak Hotels and Resorts Ltd v Tarek Investments Ltd  EWHC 2886 (Ch)) has clarified that an extension will not be granted simply because it was requested. The Court of Appeal has further clarified that it will not readily interfere with a first instance order imposed in respect of non-compliance with court orders or time limits, time extensions and relief from sanctions, where the first instance judge has made that order having exercised their discretion in relation to a case management decision (The Commissioner of the Police of the Metropolis v Abdulle and others  EWCA Civ 1260).
However, under the CPR, parties have the flexibility to agree short time extensions in certain circumstances without needing to seek court approval, provided they do not impact on any hearing date.
Significant or tactical delays will not be tolerated. Notable examples include the High Court judgment in Avanesov v Shymkentpivo  EWHC 394 (Comm) and the Court of Appeal judgment in Denton v White.
Parties should also be cautious when attempting to take advantage of the other party’s breach. In Viridor Waste Management v Veolia Environmental Services  EWHC 2321 (Comm), a defendant refused to consent to an extension of time for service of the particulars of claim (which had been brought to the attention of the defendant but had not been properly served) where a new claim would have been time-barred. The court penalised the defendant in indemnity costs for seeking to take advantage of the claimant’s mistake.
Lastly, amendments to the CPR in force as of 6 April 2017 provide that a claim or counterclaim is liable to be struck out if the trial fee is not paid on time.
The CPR also imposes various costs management rules to promote effective case management at a proportionate cost. Parties to all multitrack cases valued under £10 million, for example, are required to comply with additional rules, in particular the preparation of a costs budget. However, cost management rules do not apply to proceedings under the Shorter Trials Scheme unless agreed to between the parties and subject to permission by the court.
Any party that fails to file a budget in time will be treated as having filed a budget in respect of applicable court fees only, unless the court orders otherwise, restricting the party’s ability to recover costs in the event of a successful outcome. In the recent case of BMCE Bank International plc v Phoenix Commodities PVT Ltd and another  EWCH 3380 (Comm), the court confirmed that failure to file a costs budget is a serious and significant breach for which there has to be very good reason. In this case the claimant’s solicitors filed the costs budget two weeks late and without explanation on the morning of the CMC, and when questioned by the judge, it was determined that the partner with conduct of the claimant’s claim had been abroad on business. The court found that this was not a good enough reason to consider granting relief.
For cases valued at £10 million or more, the court may exercise discretion as to whether a costs budget is required. The parties can also apply for an order requiring costs budgets to be served (see Sharp v Blank  EWHC 2685 (Ch)).
From 6 April 2016, budgets for claims worth £50,000 or more should be filed no later than 21 days before the first CMC pursuant to CPR 3.13(1)(b).Where the claim is for less than £50,000, the budgets must be filed and served with the parties’ directions questionnaire (pursuant to CPR 3.13(1)(a)). There will also be a requirement to file ‘budget discussion reports’ that indicate what is agreed and disagreed in terms of proposed budgeted figures, no later than seven days before the first CMC.
Under costs management rules, parties must exchange budgets and come to an agreement on them. However, it should be noted that budgets may nevertheless be scrutinised by the court to ensure they are proportionate and reasonable.
In CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd and others  EWHC 481, the judge reduced a claimant’s budget by over 50 per cent on the basis that it was not reasonable, proportionate or reliable. In addition, the claimant was criticised for including too many assumptions and caveats in its budget as this was deemed to be calculated to provide maximum room to manoeuvre at a later stage. Advisers should therefore be aware of the importance of filing accurate and proportionate budgets in view of the court’s wide costs management powers.
Recent cases have suggested that a costs budget of about half the amount of the claim is proportionate (see, for example, Group Seven Ltd v Nasir and others  EWHC 520 (Ch), although the judge in that case made clear that there is no mathematical relationship between the amount of the claim and the costs incurred when it comes to deciding what is proportionate).
Parties should also approach the preparation of a costs budget carefully as current case law is not consistent as to whether retrospective permission to revise the budget will be granted. Revision of a budget because of an error is extremely difficult.
Evidence - Disclosure Pilot Scheme
From 1 January 2019, the business and property courts introduced a mandatory Disclosure Pilot Scheme (DPS) (subject to limited exceptions) pursuant to Practice Direction 51U (PD 51U). The pilot scheme will operate in business and property courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, London, Manchester and Newcastle and will have a significant impact on the disclosure process within civil proceedings and the overall case management (see below).
Under the DPS it appears that it is still necessary for parties to comply with requirements under the Practice Direction - Pre-Action Conduct and Protocols or any relevant specific pre-action protocol that may apply. However, the DPS also introduces important steps that parties must take before proceedings have commenced, and establishes certain duties owed by the parties to the court, referred to as the Disclosure Duties. The Disclosure Duties are continuing duties that last until the conclusion of the proceedings, and include ensuring that parties take all relevant steps to preserve documents within their control that may be relevant to any issue in these proceedings and undertaking to search for documents in a responsible and conscientious manner to fulfil the purpose of such a search. Disclosure Duties also apply to the parties’ solicitors, whose duties include, among other things, taking reasonable steps to preserve documents within their control that may be relevant to any issue in proceedings.
Under the DPS, parties are required to take reasonable steps to preserve documents in their control that may be relevant to any issue in proceedings as well as providing specific detail on what is required in terms of document preservation. Such requirements include an obligation to send a written notification in any form to all relevant employees and former employees that identifies documents or classes of documents to be preserved and notifying the recipient that they should not delete or destroy documents. There is also a requirement for each party’s legal representatives to notify their clients of the need to preserve documents, and obtain written confirmation from their clients that they have discharged their obligations under the DPS with regard to document preservation.
The DPS also introduces the concept of Initial Disclosure, which involves each party providing to all other parties an Initial Disclosure List of Documents. The list is to be provided simultaneously with the statement of case, and will list the key documents on which a party has relied, and that are necessary to enable the other parties to understand the claim or defence that they have to meet. There are several circumstances where Initial Disclosure is not required, most notably when the parties request Extended Disclosure.
Extended Disclosure may be used in situations where the court is persuaded that it is appropriate to fairly resolve one or more of the Issues for Disclosure as identified by the parties. Extended Disclosure involves five ‘Models’ of disclosure. The Models range from an order for no disclosure to the widest form of disclosure (requiring production of documents that may lead to a train of enquiry).
A further aspect of the DPS is the replacement of the Electronic Documents Questionnaire in its current form by a ‘Disclosure Review Document’ (DRD). Parties should complete a joint DRD to list the main issues for the purposes of disclosure, exchange proposals for ‘Extended Disclosure’, and share information about where and how documents are kept. The parties are required to complete a DRD prior to the CMC (see below) which lists all Issues for Disclosure to be decided in the proceedings and decides which of the five Models for Extended Disclosure is appropriate to achieve a fair determination of those issues.
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