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THE ADMIRALTY & COMMERCIAL COURTS GUIDE 2006

 

D  Case Management in the Commercial Court
D1   Generally
D1.1   All proceedings in the Commercial List will be subject to management by the court.
D1.2   All proceedings in the Commercial List are automatically allocated to the multi-track and consequently Part 26 and the rules relating to allocation do not apply: rule 58.13(1).
D1.3   Except for rule 29.3(2) (legal representatives to attend case management conferences and pre-trial reviews) and rule 29.5 (variation of case management timetable), Part 29 does not apply to proceedings in the Commercial List: rule 58.13(2).
D2   Key features of case management in the Commercial Court
D2.0   Case management is governed by rule 58.13 and PD 58 Paragraph 10. In a normal commercial case commenced by a Part 7 claim form, case management will include the following 10 key features:
 
(1)   statements of case will be exchanged within fixed or monitored time periods;
 
(2)   a case memorandum, a list of issues and a case management bundle will be produced at an early point in the case;
 
(3)   the case memorandum, list of issues and case management bundle will be amended and updated or revised on a running basis throughout the life of the case and will be used by the court at every stage of the case;
 
(4)   a mandatory case management conference will be held shortly after statements of case have been served, if not before (and preceded by the parties lodging case management information sheets identifying their views on the requirements of the case);
 
(5)   at the case management conference the court will (as necessary) discuss the issues in the case and the requirements of the case with the advocates retained in the case. The court will set a pre-trial timetable and give any other directions as may be appropriate;
 
(6)   before the progress monitoring date the parties will report to the court, using a progress monitoring information sheet, the extent of their compliance with the pre-trial timetable;
 
(7)   on or shortly after the progress monitoring date a judge will (without a hearing) consider progress and give such further directions as he thinks appropriate;
 
(8)   if at the progress monitoring date all parties have indicated that they will be ready for trial, all parties will complete a pre-trial checklist;
 
(9)   in many cases there will be a pre-trial review; in such cases the parties will be required to prepare a trial timetable for consideration by the court;
 
(10)   throughout t LetterNumber is O1 he case there will be regular reviews of the estimated length of trial.
D3   Fixing a case management conference
D3.1   A mandatory case management conference will normally take place on the first available date 6 weeks after all defendants who intend to serve a defence have done so. This will normally allow time for the preparation and service of any reply (see section C4).
D3.2  
(a)   If proceedings have been started by service of a Part 7 claim form, the claimant must take steps to fix the date for the case management conference with the Listing Office in co-operation with the other parties within 14 days of the date when all defendants who intend to file and serve a defence have done so: PD 58 Paragraph 10.2(a). The parties should bear in mind the need to allow time for the preparation and service of any reply.
(b)   If proceedings have been begun by service of a Part 8 claim form, the claimant must take steps to fix a date for the case management conference with the Listing Office in co-operation with the other parties within 14 days of the date when all defendants who wish to serve evidence have done so: PD 58 Paragraph 10.2(b).
D3.3  
(a)   In accordance with section C3 the Registry will expect a defence to be served and filed by the latest of
  (i)   28 days after service of particulars of claim (as certified by
the certificate of service); or
  (ii)   any extended date for serving and filing a defence as notified
to the court in writing following agreement between the parties; or
  (iii)   any extended date for serving and filing a defence as ordered
by the court on an application.
(b)   If within 28 days after the latest of these dates has passed for each defendant, the parties have not taken steps to fix the date for the case management conference, the Case Management Unit will inform the Judge in Charge of the List, and at his direction will take steps to fix a date for the case management conference without further reference to the parties.
D3.4   If the proceedings have been transferred to the Commercial List, the claimant must apply for a case management conference within 14 days of the date of the order transferring them, unless the judge held, or gave directions for, a case management conference when he made the order transferring the proceedings: PD 58 Paragraph 10.3.
D3.5   If the claimant fails to make an application as required by the rules, any other party may apply for a case management conference: PD 58 Paragraph 10.5.
D3.6  
(a)   In some cases it may be appropriate for a case management conference to take place at an earlier date.
(b)   Any party may apply to the court in writing at an earlier time for a case management conference: PD 58 Paragraph 10.4. A request by any party for an early case management conference should be made in writing to the Judge in Charge of the List, on notice to all other parties, at the earliest possible opportunity.
D3.7   If before the date on which the case management conference would be held in accordance with section D3 there is a hearing in the case at which the parties are represented, the business of the case management conference will normally be transacted at that hearing and there will be no separate case management conference.
D3.8   The court may fix a case management conference at any time on its own initiative. If it does so, the court will normally give at least 7 days notice to the parties: PD 58 Paragraph 10.6.
D3.9   A case management conference may not be postponed or adjourned without an order of the court.
D4   Two-Judge team system
D4.1  
(a)   Cases which are exceptional in size or complexity or in having a propensity to give rise to numerous pre-trial applications may be allocated to a management team of two designated judges.
(b)   An application for the appointment of a two-judge management team should be made in writing to the Judge in Charge of the List at the time of fixing the case management conference.
(c)   If an order is made for allocation to a two-judge team, one of the designated judges will preside at all subsequent pre-trial case management conferences and other hearings.
D4.2   Except for an application for an interim payment, all applications in the case, and the trial itself, will be heard by one or other of the designated judges.
D5   Case memorandum
D5.1   In order that the judge conducting the case management conference may be informed of the general nature of the case and the issues which are expected to arise, after service of the defence and any reply the solicitors and counsel for each party shall draft an agreed case memorandum.
D5.2   The case memorandum should contain:
 
(i)   a short and uncontroversial description of what the case is about; and
 
(ii)   a very short and uncontroversial summary of the material procedural history of the case.
D5.3   Unless otherwise ordered, the solicitors for the claimant are to be responsible for producing and filing the case memorandum.
D5.4   The case memorandum should not refer to any application for an interim payment, to any order for an interim payment, to any voluntary interim payment, or to any payment or offer under CPR Part 36 or Part 37.
D5.5  
(a)   It should be clearly understood that the only purpose of the case memorandum is to help the judge understand broadly what the case is about. The case memorandum does not play any part in the trial. It is unnecessary, therefore, for parties to be unduly concerned about the precise terms in which it is drafted, provided it contains a reasonably fair and balanced description of the case. Above all the parties must do their best to spend as little time as practicable in drafting and negotiating the wording of the memorandum and keep clearly in mind the need to limit costs.
(b)   Accordingly, in all but the most exceptional cases it should be possible for the parties to draft an agreed case memorandum. However, if it proves impossible to do so, the claimant must draft the case memorandum and send a copy to the defendant. The defendant may provide its comments to the court (with a copy to the claimant) separately.
(c)   The failure of the parties to agree a case memorandum is a matter which the court may wish to take into account when dealing with the costs of the case management conference.
D6   List of issues
D6.1   After service of the defence (and any reply), the solicitors and counsel for each party shall produce an agreed list of the important issues in the case. The list should include both issues of fact and issue of law. A separate section of the document should list what is common ground between the parties (or any of them, specifying which).
D6.2   Unless otherwise ordered, the solicitors and counsel for the claimant are to have responsibility for the production and revision of the list of issues.
D7   Case management bundle Preparation
D7.1   Before the case management conference (see sections D3 and D8), a case management bundle should be prepared by the solicitors for the claimant: PD 58 Paragraph 10.8.
   Contents
D7.2   The case management bundle should only contain the documents listed below (where the documents have been created by the relevant time): (i) the /text>, claim form;
 
(ii)   all statements of case (excluding schedules), except that, if a summary has been prepared, the bundle should contain the summary, not the full statement of case;
 
(iii)   the case memorandum (see section D5);
 
(iv)   the list of issues (see section D6);
 
(v)   the case management information sheets and the pre-trial timetable if one has already been established (see sections D8.5 and D8.9);
 
(vi)   the principal orders in the case; and
 
(vii)   any agreement in writing made by the parties to disclose documents without making a list or any agreement in writing that disclosure (or inspection or both) shall take place in stages. See generally PD 58 Paragraph 10.8.
D7.3   The case management bundle must not include a copy of any order for an interim payment.
   Lodging the case management bundle
D7.4   The case management bundle should be lodged with the Listing Office at least 7 days before the (first) case management conference (or earlier hearing at which the parties are represented and at which the business of the case management conference may be transacted: see section D3.7).
   Preparation and upkeep
D7.5   The claimant (or other party responsible for the preparation and upkeep of the case management bundle), in consultation with the other parties, must revise and update the case management bundle as the case proceeds: PD 58 Paragraph 10.9. The claimant should attend at the Case Management Unit for this purpose at the following stages:
 
(i)   within 10 days of the case management conference, in order to add the pre-trial timetable (or any other order made at the case management conference) and an updated case memorandum;
 
(ii)   within 10 days of an order being made on an application, if in the light of the order or the application it is necessary to add a copy of the order made (as a principal order in the case) or an updated case memorandum;
 
(iii)   within 14 days of the service of any amended statement of case (or summary), in order to substitute a copy of the amended statement of case (or summary) for that which it replaces and to incorporate an updated case memorandum and (if appropriate) a revised list of issues;
 
(iv)   within 10 days of any other revision to the case memorandum or list of issues, in order to incorporate the revised document.
D8   Case Management Conference Application to postpone the case management conference
D8.1  
(a)   An application to postpone the case management conference must be made within 21 days after all defendants who intend to serve a defence have done so.
(b)   The application will be dealt with on paper unless the court considers it appropriate to direct an oral hearing.
   Attendance at the case management conference
D8.2   Clients need not attend a case management conference unless the court otherwise orders. A representative who has conduct of the case must attend from each firm of solicitors instructed in the case. At least one of the advocates retained in the case on behalf of each party should also attend.
D8.3  
(a)   The case management conference is a very significant stage in the case. It is not simply a substitute for the summons for directions under the former Rules of the Supreme Court and although parties are encouraged to agree proposals for directions for the consideration of the court, directions will not normally be made by consent without the need for attendance.
(b)   The general rule in the Commercial Court, as the Commercial and Admiralty Courts Guide makes clear, is that there must be an oral Case Management Conference (CMC) at court.
(c)   However, there are cases which are out of the ordinary where it may be possible to dispense with an oral hearing if the issues are straightforward and the costs of an oral hearing cannot be justified.
(d)   In such a case, if the parties wish to ask the Court to consider holding the CMC on paper, they must lodge all the appropriate documents by no later than 12 noon on the Tuesday of the week in which the CMC is fixed for the Friday. That timing will be strictly enforced. If all the papers are not provided by that time, the CMC must be expected to go forward to an oral hearing. If the failure to lodge the papers is due to the fault of one party and it is for that reason an oral CMC takes place, that party will be at risk as to costs.
(e)   With the papers (which will include the Case Management bundle with the information sheets fully completed by each party), the parties must lodge a draft Order (agreed by the parties) for consideration by the Judge and a statement signed by each advocate:
  (i)   confirming that the parties have considered and discussed all
the relevant issues and brought to the Court's attention anything that was unusual; and
  (ii)   setting out information about any steps that had been taken to
resolve the dispute by ADR, any future plans for ADR or an explanation as to why ADR would not be appropriate.
(f)   In the ordinary course of things it would be unlikely that any case involving expert evidence or preliminary issues would be suitable for a CMC on paper. In cases involving expert evidence, the Court is anxious to give particular scrutiny to that evidence, given the cost such evidence usually involves and the need to focus that evidence. In cases where preliminary issues are sought, the Court will need to examine the formulation of those issues and discuss whether they are really appropriate.
   Applications
D8.4  
(a)   If by the time of the case management conference a party wishes to apply for an order in respect of a matter not covered by Questions (1)-(16) in the case management information sheet, he should make that application at the case management conference.
(b)   In some cases notice of such an application may be given in the case management information sheet itself: see section D8.5(c).
(c)   In all other cases the applicant should ensure that an application notice and any supporting evidence is filed and served in time to enable the application to be heard at the case management conference.
   Materials: case management information sheet and case management
   bundle
D8.5  
(a)   All parties attending a case management conference must complete a case management information sheet: PD 58 Paragraph 10.7. A standard form of case management information sheet is set out in Appendix 6. The information sheet is intended to include reference to all applications which the parties would wish to make at a case management conference.
(b)   A completed case management information sheet must be provided by each party to the court (and copied to all other parties) at least 7 days before the case management conference.
(c)   Applications not covered by the standard questions raised in the case management information sheet should be entered under Question (17). No other application notice is necessary if written evidence will not be involved and the 7 day notice given by entering the application on the information sheet will in all the circumstances be sufficient to enable all other parties to deal with the application.
D8.6   The case management bundle must be provided to the court at least 7 days before the case management conference: PD 58 Paragraph 10.8. Only where it is essential for the court on the case management conference to see the full version of a statement of case that has been summarised in accordance with section C1.4 above should a copy of that statement of case be lodged for the case management conference.
   The hearing
D8.7   The court's power to give directions at the case management conference is to be found in rules 3.1 and 58.13(4). At the case management conference the judge will:
 
(i)   discuss the issues in the case, and the requirements of the case, with the advocates retained in the case;
 
(ii)   fix the entire pre-trial timetable, or, if that is not practicable, fix as much of the pre-trial timetable as possible; and
 
(iii)   in appropriate cases make an ADR order.
D8.8   At the Case Management Conference, and again at the Pre-Trial Review, consideration will be given to the possibility of the trial of a preliminary issue or issues the resolution of which is likely to shorten the proceedings. An example is a relatively short question of law which can be tried without significant delay (though the implications of a possible appeal for the remainder of the case cannot be lost sight of). The court may suggest the trial of a preliminary issues, but it will rarely make an order without the concurrence of at least one of the parties.
D8.9  
(a)   Rules 3.1(2) and 58.13(4) enable the court at the case management conference to stay the proceedings while the parties try to settle the case by alternative means. The case management information sheet requires the parties to indicate whether a stay for such purposes is sought.
(b)   In an appropriate case an ADR order may be made without a stay of proceedings. The parties should consider carefully whether it may be possible to provide for ADR in the pre-trial timetable without affecting the date of trial.
(c)   Where a stay has been granted for a fixed period for the purposes of ADR the court has power to extend it. If an extension of the stay is desired by all parties, a judge will normally be prepared to deal with an application for such an extension if it is made before the expiry of the stay by letter from the legal representatives of one of the parties. The letter should confirm that all parties consent to the application.
(d)   An extension will not normally be granted for more than four weeks unless clear reasons are given to justify a longer period, but more than one extension may be granted.
   The pre-trial timetable
D8.10   The pre-trial timetable will normally include:
 
(i)   a progress monitoring date (see section D12 below); and
 
(ii)   a direction that the parties attend upon the Clerk to the Commercial Court to obtain a fixed date for trial.
   Variations to the pre-trial timetable
D8.11   The parties may agree minor variations to the time periods set out in the pre-trial timetable without the case needing to be brought back to the court provided that the variation
 
(i)   will not jeopardise the date fixed for trial;
 
(ii)   does not relate to the progress monitoring date; and
 
(iii)   does not provide for the completion after the progress monitoring date of any step which was previously scheduled to have been completed by that date.
D8.12   If in any case it becomes apparent that variations to the pre-trial timetable are required which do not fall within section D8.10 above, the parties should apply to have the case management conference reconvened immediately. The parties should not wait until the progress monitoring date.
D9   Case management conference: Part 8 claims
D9.0   In a case commenced by the issue of a Part 8 claim form, a case management conference will normally take place on the first available date 6 weeks after service and filing of the defendant's evidence. At that case management conference the Court will make such pre-trial directions as are necessary, adapting (where useful in the context of the particular claim) those of the case management procedures used for a claim commenced by the issue of a Part 7 claim form.
D10   Case management conference: Part 20 claims
D10.1   Wherever possible, any party who intends to make a Part 20 claim should do so before the hearing of the case management conference dealing with the main claim.
D10.2   Where permission to make a Part 20 claim is required it should be sought at the case management conference in the main claim.
D10.3   If the Part 20 claim is confined to a counterclaim by a defendant against a claimant alone, the court will give directions in the Part 20 claim at the case management conference in the main claim.
D10.4   If the Part 20 claim is not confined to a counterclaim by a defendant against a claimant alone, the case management conference in the main claim will be reconvened on the first available date 6 weeks after service by the defendant of the new party or parties to the proceedings.
D10.5   All parties to the proceedings (i.e. the parties to the main claim and the parties to the Part 20 claim) must attend the reconvened case management conference. There will not be a separate case management conference for the Part 20 claim alone.
D10.6   In any case involving a Part 20 claim the court will give case management directions at the same case management conferences as it gives directions for the main claim: PD 58 Paragraph 12. The court will therefore normally only give case management directions at hearings attended by all parties to the proceedings.
D10.7   The provisions of D10.4, D10.5 and D10.6 apply equally to Part 20 claims brought by parties who are not also parties to the main claim.
D11   Management throughout the case
D11.0   The court will continue to take an active role in the management of the case throughout its progress to trial. Parties should be ready at all times to provide the court with such information and assistance as it may require for that purpose.
D12   Progress monitoring Fixing the progress monitoring date
D12.1   The progress monitoring date will be fixed at the case management conference and will normally be after the date in the pre-trial timetable for exchange of witness statements and expert reports.
   Progress monitoring information sheet
D12.2   At least 3 days (i.e. three clear days) before the progress monitoring date the parties must each send to the Case Management Unit (with a copy to all other parties) a progress monitoring information sheet to inform the court:
 
(i)   whether they have complied with the pre-trial timetable, and if they have not, the respects in which they have not; and
 
(ii)   whether they will be ready for a trial commencing on the fixed date specified in the pre-trial timetable, and if they will not be ready, why they will not be ready.
D12.3   A standard form of progress monitoring information sheet is set out in Appendix 12.
D13   Reconvening the case management conference
D13.1   If in the view of the court the information given in the progress monitoring sheets justifies this course, the court may direct that the case management conference be reconvened.
D13.2   At a reconvened hearing of the case management conference the court may make such orders and give such directions as it considers appropriate. If the court is of the view that due to the failure of the parties or any of them to comply with the case management timetable the trial cannot be fairly and efficiently conducted on the date fixed, it may vacate the trial date and make such order for costs as is appropriate.
D14   Pre-trial checklist
D14.0   Not later than three weeks before the date fixed for trial each party must send to the Listing Office (with a copy to all other parties) a completed checklist confirming final details for trial (a "pre-trial checklist") in the form set out in Appendix 13.
D15   Further information
D15.1  
(a)   If a party declines to provide further information requested under Part 18, the solicitors or counsel who are to appear at the application for the parties concerned must communicate directly with each other in an attempt to reach agreement before any application is made to the court.
(b)   No application for an order that a party provide further information will normally be listed for hearing without prior written confirmation from the applicant that the requirements of this section D15.1(a) have been complied with.
D15.2   Because it falls within the definition of a statement of case (see rule 2.3(1)) a response providing further information under CPR Part 18 must be verified by a statement of truth.
D16   Fixed trial dates
D16.1   Most cases will be given fixed trial dates immediately after the pre-trial timetable has been set at the case management conference.
D16.2   A fixed date for trial is given on the understanding that if previous fixtures have been substantially underestimated or other urgent matters need to be heard, the trial may be delayed. Where such delay might cause particular inconvenience to witnesses or others involved in the trial, the Clerk to the Commercial Court should be informed well in advance of the fixed date.
D17   Estimates of length of trial
D17.1   At the case management conference an estimate will be made of the minimum and maximum lengths of the trial. The estimate will appear in the pre-trial timetable and will be the basis on which a date for trial will be fixed.
D17.2   If a party subsequently instructs new advocate(s) to appear on its behalf at the trial, the Listing Office should be notified of that fact within 14 days. Advocates newly instructed should review the estimate of the minimum and maximum lengths of the trial, and submit to the Listing Office a signed note revising or confirming the estimate as appropriate.
D17.3   A confirmed estimate of the minimum and maximum lengths of the trial, signed by the advocates who are to appear at the trial, should be attached to the pre-trial checklist.
D17.4   It is the duty of all advocates who are to appear at the trial to seek agreement, if possible, on the estimated minimum and maximum lengths of trial.
D17.5   The provisional estimate and (after it is given) the confirmed estimate must be kept under review by the advocates who are to appear at the trial. If at any stage an estimate needs to be revised, a signed revised estimate (whether agreed or not) must be submitted by the advocates to the Clerk to the Commercial Court.
D17.6   Accurate estimation of trial length is of great importance to the efficient functioning of the court. The court will be guided by, but will not necessarily accept, the estimates given by the parties
D18   Pre-Trial Review and trial timetable
D18.1   The court will order a pre-trial review in any case in which it considers it appropriate to do so.
D18.2   A pre-trial review will normally take place between 8 and 4 weeks before the date fixed for trial.
D18.3   Whenever possible the pre-trial review will be conducted by the trial judge. It should be attended by the advocates who are to appear at the trial: PD 58 Paragraph 11.2.
D18.4   Before the pre-trial review or, if there is not to be one, not later than 7 days before the trial is due to commence, the parties must attempt to agree a timetable for the trial providing for oral submissions, witnesses of fact and expert evidence: PD 58 Paragraph 11.3. The claimant must file a copy of the draft timetable at least two days before the date fixed for the pre- trial review; any differences of view should be clearly identified: PD 58 Paragraph 11.4. At the pre-trial review the judge may set a timetable for the trial and give such other directions for the conduct of the trial as he considers appropriate.
D19   Orders
D19.1  
(a)   Except for orders made by the court on its own initiative under rule 3.3, and unless the court otherwise orders, every judgment or order will be drawn up by the parties and rule 40.3 is modified accordingly: rule 58.15(1).
(b)   Consent orders are to be drawn up in accordance with the procedure described in section F9.
(c)   All other orders are to be drawn up in draft by the parties and dated in the draft with the date of the judge's decision. The claimant is to have responsibility for drafting the order, unless it was made on the application of another party in which case that other party is to have the responsibility.
(d)   Two copies of the draft, signed by the parties themselves, or by their solicitors or counsel, must be lodged with the Registry within five days of the decision of the court reflected in the draft.
D19.2   If the court orders that an act be done by a certain date without specifying a time for compliance, the latest time for compliance is 4.30 p.m. on the day in question.
D19.3   Orders that are required to be served must be served by the parties, unless the court otherwise directs.