The Civil Procedure (Amendment) Rules 2013 relating to disclosure and case management

This post has been amended to take account of the alterations announced AFTER the Civil Procedure (Amendment) Rules had been approved by Parliament. If that part of this post which relates to costs management has lost some clarity as a result, I would not be a bit surprised. We wait for the whole lot – statute, the “document” which announced the results of “further reflection”, the amended Rule and Practice Direction 3D. Then no doubt we will start seeing some case law as parties and courts try and work it all out.

Note that the case management provisions relating to Disclosure remain intact; they include a duty to estimate the costs of giving Disclosure. Note also that the “document” giving notice of the amendment ends as follows:

Subject to the limited exceptions which will be dealt with in the direction, it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so. Even when the exceptions in the rule and the direction apply, the use of costs management should always be considered

See my article Costs management shambles defies parody but case management still has teeth.

The Civil Procedure (Amendment) Rules were published yesterday. They cover a wide range of matters, all to take effect on 1 April (subject to certain specific transitional provisions relating to discrete sections).

I give below the parts of most interest to those concerned with disclosure, case management and budgets. It is notoriously difficult to copy sections from statutes, particularly amending statutes, partly because their effect can be obscured by the (wholly necessary) cross-references to existing sections and other changes, and partly because of the “clever” way that text editors seek to renumber paragraphs and sub-paragraphs once divorced from the structure of their source.

Section 4

Insert the words “at proportionate cost” into the definition of the Overriding objective in Rule 1.1 and “enforcing compliance with rules, practice directions and orders” as an additional part of the description of the court’s duty in Rule 1.2.

The latter obviously creates no new duty for lawyers or judges (those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to, as HHJ Simon Brown QC reminded us in Earles v Barclays), but signals a new toughness with defaulters.

Section 5

Active management taken to a new level:

The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.

Orders to be taken seriously:

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a)   for litigation to be conducted efficiently and at proportionate cost; and

(b)   to enforce compliance with rules, practice directions and orders;

Costs Management

[It was announced after the Amendments has passed through Parliament that "On further reflection" the courts exempt from automatic costs management by Rule 3.12(1) would not just be limited to Admiralty and Commercial Court as originally intended. The Rule will be amended, and what appears here is the amended version.]

3.12(1)

Application of this Section and the purpose of costs management

3.12.

(1) This Section and Practice Direction 3E apply to all multi-track cases commenced on or after 1st April 2013, except -

(a) cases in the Admiralty and Commercial Courts;
(b) such cases in the Chancery Division as the Chancellor of the High Court may direct; and
(c) such cases in the Technology and Construction Court and the Mercantile Courts as the President of the Queen’s Bench Division may direct, unless the proceedings are the subject of fixed costs or scale costs or the court otherwise orders. This Section and the Practice Direction 3E will apply to any other proceedings (including applications) where the court so orders.

(2) The purpose of costs management is that the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective.

At the same time a direction will be made under the amended CPR 3.12(1) in these terms:

Pursuant to CPR rule 3.12(1)(b) and (c), the Chancellor of the High Court directs that in the Chancery Division and the President of the Queen’s Bench Division directs that in the Technology and Construction Court and Mercantile Courts, Section II of CPR 3 [the new Costs Management section] and Practice Direction 3E [Costs Management] shall not apply to cases where at the date of the first case management conference the sums in dispute in the proceedings exceed £2,000,000, excluding interest and costs, except where the court so orders.

Filing and exchanging budgets

3.13. Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets as required by the rules or as the court otherwise directs. Each party must do so by the date specified in the notice served under rule 26.3(1) or, if no such date is specified, seven days before the first case management conference.

Failure to file a budget

3.14. Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.

Costs management orders

3.15.

(1) In addition to exercising its other powers, the court may manage the costs to be incurred by any party in any proceedings.

(2) The court may at any time make a “costs management order”. By such order the court will—

(a)   record the extent to which the budgets are agreed between the parties;
(b)   in respect of budgets or parts of budgets which are not agreed, record the court’s approval after making appropriate revisions.

(3) If a costs management order has been made, the court will thereafter control the parties’ budgets in respect of recoverable costs.

Costs management conferences

3.16.

(1) Any hearing which is convened solely for the purpose of costs management (for example, to approve a revised budget) is referred to as a “costs management conference”.

(2) Where practicable, costs management conferences should be conducted by telephone or in writing.

Court to have regard to budgets and to take account of costs

3.17.

(1) When making any case management decision, the court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step.

(2) Paragraph (1) applies whether or not the court has made a costs management order.

Assessing costs on the standard basis where a costs management order has been made

3.18. In any case where a costs management order has been made, when assessing costs on the standard basis, the court will—

(a)   have regard to the receiving party’s last approved or agreed budget for each phase of the proceedings; and

(b)   not depart from such approved or agreed budget unless satisfied that there is good reason to do so.

(Attention is drawn to rule 44.3(2)(a) and rule 44.3(5), which concern proportionality of costs.)

Costs capping orders – General

3.19.

(1) A costs capping order is an order limiting the amount of future costs (including disbursements) which a party may recover pursuant to an order for costs subsequently made.

Much detail, but broadly the power of the court to control what parties may recover from opponents. They can, of course, spend what they like, as long as they neither cause the other side to incur unnecessry costs (already controlled, in theory at least, by existing principles of casse management) nor seek to recover it all in the event of success.

As with budgets, parties may apply to vary a costs capping order.

Section 10

In Part 29

(2) When drafting case management directions both the parties and the court should take as their starting point any relevant model directions and standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the particular case.

Replacement 29.4.

The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference. Where the court approves agreed directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated.

Section 11

1. Replacement Rule 31.5

(1) In all claims to which rule 31.5(2) does not apply—

(a)   an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;
(b)   the court may dispense with or limit standard disclosure; and
(c)   the parties may agree in writing to dispense with or to limit standard disclosure.

(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.

(3) Not less than 14 days before the first case management conference each party must file and serve a report verified by a statement of truth, which—

(a)   describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;
(b)   describes where and with whom those documents are or may be located;
(c)   in the case of electronic documents, describes how those documents are stored;
(d)   estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and
(e)   states which of the directions under paragraphs (7) or (8) are to be sought.

(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3).

So for those cases required under Practice Direction 31B to complete the Electronic Documents Questionnaire, this “report” is required as well – no great burden given the overlap. The EDQ is more comprehensive – but any competent lawyer will want to know the answers anyway in a case with any appreciable volume of documents.  There is a further reference to this below.

(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

(6) If—

(a)   the parties agree proposals for the scope of disclosure; and
(b)   the court considers that the proposals are appropriate in all the circumstances,

the court may approve them without a hearing and give directions in the terms proposed.

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure—

(a)   an order dispensing with disclosure;
(b)   an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
(c)   an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
(d)   an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
(e)   an order that a party give standard disclosure;
(f)    any other order in relation to disclosure that the court considers appropriate.

(8) The court may at any point give directions as to how disclosure is to be given, and in particular—

(a)   what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;
(b)   whether lists of documents are required;
(c)   how and when the disclosure statement is to be given;
(d)   in what format documents are to be disclosed (and whether any identification is required);
(e)   what is required in relation to documents that once existed but no longer exist; and
(f)    whether disclosure shall take place in stages.

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).

Section 12

After rule 32.2(2), insert—

(3) The court may give directions—

(a)   identifying or limiting the issues to which factual evidence may be directed;
(b)   identifying the witnesses who may be called or whose evidence may be read; or
(c)   limiting the length or format of witness statements.

Transitional Provisions

Several of these, of which the most relevant are:

[The obligation to try and agree directions] does not apply where any case management conference takes place or is due to take place before 9 April 2013.

[The menu option] does not apply where the first case management conference takes place or is due to take place before 16 April 2013.

This post is deliberately short of comment. That will follow.

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