case management conference

Case management conferences form a fundamental part of the management of litigation in the UK. These conferences are used by courts to (1) exercise their broad case management powers; (2) fix case management directions; (3) if necessary, review the litigants’ compliance with previous directions, with a view to making directions leading up to the trial.

The parties may consent to directions that would otherwise be made at a CMC by using consent orders, however the court retains the power under the Civil Procedure Rules to require the parties to attend court at any time for the purposes of managing litigation for the purposes of ensuring that the case is ready for trial at any time between allocation through to the pretrial review.

The ordinary business at a case management conference includes:

1. Ensuring previous directions made by the court have been complied with;
2. Review the steps taken by the parties in preparing the case for the final hearing;
3. Decide matters that should be addressed prior to the hearing, having regard for the overriding objective;
4. Make a record of agreements to progress the litigation;
5. fix further directions which the parties to the litigation are to comply with up to the trial.

In the course of managing litigation, the court will identify the fundamental issues in dispute between the parties, with a view to ensuring that the case progresses in accordance with the directions issued in the proceedings. Legal representatives or a person familiar with the disputes being litigated (preferably with litigation experience) should attend to properly assist the court. To this end, it may be appropriate for:

1. documents that the court may wish to see be available for inspection, including witness statements and experts’ reports;
2. preparation of a case summary (which is the responsibility of the claimant), to be filed and served before the hearing. In some courts, such as the commercial court, case summaries are required in any event under the Civil Procedure Rules;

3. preparation of draft orders in advance for consideration by the court, after service of the same on the parties.

The court may also wish to hear submissions from the parties with a view to incorporating directions into the case timetable relating to:

1. the details of the claim and sums sought by way of damages, so that the other party can understand the case it has to meet on a claim or counterclaim
2. amendments that may be required to the Particulars of Claim or the Defence in the litigation
3. the classes of documents that ought to be made the subject of disclosure
4. whether expert evidence is required, and how and when that evidence should be obtained and disclosed, including questions to be put to experts
5. the factual evidence to be disclosed
6. the arrangements that should be made about the giving of further information and clarification of a party's case
7. whether a trial for liability on the claim and any counterclaims should be heard separately or together with an assessment of quantum of liability
8. whether the trial should be spilt, and how this might be arranged in terms of the issues to be heard
9. the need for a further case management conference and/or a pre-trial review
10. either fix a date for the hearing or a trial window, which will in all likelihood be as soon as practicable. Also dates for filing pre-trial checklists may also be set
11. Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

Usually though, directions are fixed up to a particular stage of the litigation to allow a hearing for a further review prior to the trial. The point at which a further review may be fixed to take place may be after disclosure and several weeks before the trial. Depending on the further steps which may need to be taken a pre-trial review may be ordered to take place.

Directions

The starting point for the directions made by the court are set out in the Civil Procedure Rules. These directions cater for the usual steps encountered in the course of a case. Depending on the nature of the case, these directions are varied to cater for the requirements of the case.

For instance, where a party wishes to apply for Security for Costs or responses to a request for further information and clarification, the timetable for these applications (which would include filing of evidence by the parties) would ideally be included at an early stage in the directions.

Furthermore, should the parties agree to engage in mediation, orders for a stay of proceedings are able to included in the directions to formalise the suspension of the disputes while the parties engage in that process. If applications such as these are made well in advance of a case management conference, the court use the CMC to also hear those applications.

Importantly, the court will allocate the case to a track if it has not already done so. The track which is adopted (multi-track, fast-track or small-track) depending upon the complexity of the dispute and sums claimed in the claim and counterclaim.

Sanctions

The court maintains broad powers to sanction failure to comply with directions. A failure to comply with deadlines for filing disclosure lists, expert or lay evidence or any other direction often results in the court issuing an ‘unless order’. Such orders require a party to take stated steps in the proceedings by a specified time. In the event that the relevant litigant fails to comply with the unless order, some consequence will follow, as such adverse costs orders, striking out of a statement of case, summary judgment or some other named sanction, if the party is in default of the order.

What can Happen

Such was the case in HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd and another (2014) heard in the Supreme Court. In that case a Saudi Prince was ordered to personally sign a statement of truth by three High Court Judges, and yet continued to refuse to do so. The court made an unless order requiring the Prince to do so. The Supreme Court refused to interfere with the Orders of the High Court Judges. In the course of doing so, the President of the Supreme Court, Lord Neuberger:

1. commented that "it would be inappropriate for an appellate court to reverse or otherwise interfere with [case management directions], unless it was 'plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree'", citing Lewison LJ in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743, paragraph 51;
2. said the case management directions were "well within the generous margin accorded to case management decisions of first instance judges";
3. dismissed the appeal with the agrement of the four other Law Lords hearing the appeal.

In Closing

Case management conferences are important events in the litigious process, as the Court must allocate appropriate resources to the case. The court is also interested to ensure that the proceedings progress towards trial, having regard for the requirements of disclosure, and production and service of evidence by the parties. By engaging with the court system to resolve disputes, parties are expected to comply with case management directions.