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3. Dispute Management, Project Management, and Risk Management  

This chapter first considers the project management approach to resolving civil disputes. Such an approach involves following a single overall plan from the first consideration of the legal dispute up to trial. However, the fact that most cases will not in fact reach trial, and that reasonable use of alternative dispute resolution must now be made at all stages, means that any plan must be sufficiently flexible to include review, and that review needs to include options as to process. The chapter then turns to the process of case evaluation, where lawyers value what a case is worth, assess the chances of winning a case, and conduct a cost-benefit analysis. Also discussed are the importance of proportionality in the conduct of litigation and managing and reducing the risk of losing a case.

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17. Active Case Management and the Use of Sanctions  

This chapter discusses active case management and the use of sanctions. The Woolf reforms and more recently the Jackson reforms have supported the concept of active case management, the focus of which is to ensure that cases are dealt with ‘justly’ and ‘at proportionate cost’. The objectives of case management are set out in Civil Procedure Rules (CPR) Part 1 and the courts case management powers are in CPR Part 3. The powers of the court in relation to case management are wide and directions given after the issue of proceedings should provide a framework and timetable for dealing with a case right up to trial. The final section of the chapter deals with the sanctions that might be imposed where there is a failure to comply with case management requirements.

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Cover A Practical Approach to Civil Procedure

29. Multi-Track  

The multi-track deals with a vast range of cases, from simple contractual disputes involving little more than £25,000, to complex commercial cases involving difficult issues of fact and law with values of several million pounds, to cases where perhaps no money is at stake but which raise points of real public importance. Cases on the multi-track will generally be dealt with either in the Royal Courts of Justice or other civil trial centre. This chapter discusses agreed directions; case management conferences; fixing the date for trial; pre-trial checklists; listing hearings; pre-trial review; directions given at other hearings; and variation of case management timetable.

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Cover A Practical Approach to Civil Procedure

14. Statements of Case  

Statements of case are formal documents used in litigation to define what each party says about the case. This chapter discusses forms of statements of case; particulars of claim defence; counterclaims and set-offs; reply and defence to counterclaim; subsequent statements of case; dispensing with statements of case; Scott schedules; interrelation with case management; and use of statements of case at trial.

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28. Fast Track  

The fast track provides a ‘no-frills’ procedure for medium-sized cases that do not justify the detailed and meticulous preparation appropriate for complex and important cases. Instead, cases allocated to this track will be progressed to trial within a short timescale after the filing of a defence. The fast track covers the majority of defended claims within the £10,000–£25,000 monetary band. It also deals with non-monetary claims such as injunctions, declarations, and claims for specific performance which are unsuitable for the small claims track and do not require the more complex treatment of the multi-track. This chapter covers directions for cases allocated to the fast track; standard fast track timetable; agreed directions; varying the directions timetable; listing for trial; fast track trial; and costs in fast track cases.

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37. Sanctions  

A court can impose sanctions to ensure that its case management directions and orders are complied with, and to retain control over the conduct of litigation. These range from adverse interim costs orders through to striking out the whole or part of the defaulting party’s statement of case. This chapter discusses sanctions for non-compliance with pre-action protocols, with the Civil Procedure Rules 1998 (CPR), and with directions; application for sanctions; non-compliance with an unless order; striking out; less serious immediate sanctions; extending time and correcting errors; and relief from sanctions and setting aside.

Book

Cover A Practical Approach to Effective Litigation
A Practical Approach to Effective Litigation analyses the key skills needed to handle a case effectively. At a time of rapid and wide-ranging change in the delivery of legal services, the current edition reworks the text to take into account the implications of the implementation of the Jackson Review, and to see effective litigation clearly in the context of concerns about funding, case management by the court, costs, and the growing use of alternative dispute resolution. The volume has a strong focus on the needs of the legal practitioner, the decisions to be taken at each stage of a case, and the criteria to apply in making those decisions. This is all securely based in references to relevant Civil Procedure Rules and decided cases, with checklists and commentary to assist in the project management of a case. The work also focuses on the skills a lawyer needs to work effectively. This includes skills in dealing with a client, drafting legal documents, and presenting a case in court. Throughout the work the emphasis is on demonstrating how to use law effectively, how to develop a case, and how to present persuasive arguments. Lawyers operate in an increasingly complex environment, faced with challenges in funding a case, in managing a case to avoid sanctions, and in using complex rules to best effect. The work addresses the use of legal knowledge and skills within this rapidly changing context, bearing in mind not least that the pace of change is likely to continue with the developing use of IT, and the widening use of alternative business structures.

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Cover A Practical Approach to Effective Litigation

2. An Overview of the Litigation Process  

This chapter provides an overview of the main stages of the litigation process. It first describes the Civil Procedure Rules 1998 and the accompanying Practice Directions, which provide a basis for civil litigation, as well as the adversarial approach and the right to a fair trial. It then explains the various stages of the litigation process, beginning with the pre-action stage, which involves gathering appropriate information, evaluating the case, taking key decisions about framing the case, and building a working relationship with the other side. This is followed by discussions on starting an action; statements of case (i.e. defining the parties, the issues between the parties, and remedies sought); interim stages and case management; options for interrupting or ending litigation; preparations for trial; trial and judgment; and cases with an international element.

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23. Preparing a Case for Trial and Drafting Skeleton Arguments  

This chapter first discusses the importance of the trial date. A period within which the trial should take place (a three-week window) is usually set on allocation even if the precise date is not fixed, so that a focus for litigation is set quite soon after issue. Although the court may show flexibility in reviewing preparations for trial, a trial date will rarely be moved and only for very good reason. The second section outlines the pre-trial review process, covering pre-trial checklists, statements of case, attendance of witnesses, expert evidence, trial date and directions, and preparing trial bundles. The third section deals with preparations for the trial, including the development of trial strategy and preparing to deal with witnesses. The final section discusses skeleton arguments.

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9. Making Best Use of Law to Define Issues  

This chapter discusses the use of the legal knowledge in practice. A good general working knowledge of legal principles for effective legal practice should enable a lawyer to get initial ideas about the legal shape of a case so as to be able to draw up a proper research plan. Without a good general knowledge it can be difficult to know where to start, or to spot areas of a case that might require legal analysis. The chapter explains the use of practitioner sources (i.e. statutes and statutory instruments, case law, books and journals, online resources, and other lawyers); the importance of strategic legal research; planning research and presenting findings; the ways in which law is used in litigation; and combining law and fact to define a case. Once full analysis of facts and law has been put together to define a case, the resulting legal elements and the factual allegations that show the legal elements comprise the issues in the case. These issues are then the focus for all decisions on procedure and evidence, and for case management once proceedings are issued.

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Cover English Legal System

15. The civil process  

This chapter is a general introduction to civil litigation and the civil courts. It describes the process by which a civil claim is dealt with in the County Court or the High Court. It provides an overview of the major case management powers in the civil courts and discusses how these powers must be exercised to further the overriding objective of the Civil Procedure Rules 1998 (as amended) to deal with matters justly and at proportionate cost. A brief history of the development of the civil court rules is included. Some of the basic principles of civil evidence are discussed and the methods of enforcement of civil judgments are set out.

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15. Track Allocation and Case Management  

Judicial case management of civil litigation is one of the central planks of the Civil Procedure Rules 1998 (CPR). In exercising their powers to manage cases, the courts will be seeking to secure the overriding objective of the CPR of ensuring that cases are dealt with justly and at proportionate cost. This chapter discusses procedural judges; docketing; provisional track allocation; filing directions questionnaires; track allocation rules; notice of allocation; allocation directions; ADR and stays to allow for settlement; transfer to appropriate court; trial in the Royal Courts of Justice; changing tracks; and subsequent case management.

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16. Costs Management  

Costs management refers to the procedures used by the courts to manage the steps to be taken in civil proceedings while also managing the costs to be incurred by the parties in taking those steps to ensure that litigation is conducted at proportionate cost. This chapter discusses the elements of costs management; cases governed by costs management; costs management orders; costs budgets and case management; judicial control of costs budgets; and impact on costs orders.

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17. Costs Capping and Protection  

Costs capping orders limit the amount of costs a party may be ordered to pay to its opponent. This chapter will consider the general rules governing costs capping in CPR, Part 3. When it comes into force, there will be a parallel statutory costs capping scheme for judicial review claims in the Criminal Justice and Courts Act 2015, ss 88 and 89. In addition, there are a number of judge-made costs protection orders, namely: Beddoe orders; protective costs orders; Aarhus Convention cases; and costs limitation orders.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

7. The Approach of the Courts to ADR  

This chapter focuses on the approach of the courts to alternative dispute resolution (ADR). Parties are required to consider ADR before proceedings are issued by the protocols and Practice Direction—Pre-action Conduct. If ADR is not undertaken before issue, then it should be considered at the track allocation stage (when all the statements of case have been filed), and again after exchange of documents, and also when witness statements and expert evidence have been exchanged. The court will actively consider whether attempts have been made to settle the dispute by ADR at any case management conference, and may direct the parties to attempt ADR. If the parties reject ADR, before issue or at any stage of the litigation, they should have reasonable and cogent reasons for doing so and may be required to explain these reasons to the court. Moreover, the courts will seek to uphold and enforce ADR clauses in contracts.