Litigation tactics

Feature | 16 March 2007

Case management lies at the heart of the Civil Procedure Rules 1998 (CPR) and the process usually begins with allocation to track by a district judge. So it is surprising that so many allocation questionnaires (AQs) are so poorly completed. This not only exasperates the district judges but also results in avoidable delays in the progression of litigation.

Before the application

A few elementary steps ought to be taken even before initiating the court process.

Use the correct form

This may be obvious but mistakes are often made: the correct form has to be used. There are three: one for small claims; a second for larger specified claims; and the third for unspecified claims. They ask different questions and, in the absence of the required information, it may not be possible to allocate.

Lodging an allocation questionnaire

Being the claimant, you have lodged your AQ on time and paid the fee. Late delivery of an AQ, whether by a claimant or a defendant, may lead to an “unless order” threatening to strike out the claim or defence. This is so common that many courts have standard orders to this effect.

Non-payment of the fee results in automatic strike-out (CPR 3.7). In such a case, reinstatement is not automatic. An application fee will be incurred in addition to the late allocation fee and will be required to deal in the application with the criteria set out in CPR 3.9. This will entail the preparation of a witness statement explaining the default.

The whole exercise is costly, time consuming and your own fault.

Choosing your forum

You have considered where the case might most conveniently or fairly be heard. By all means issue in a local county court but, unless at least one litigant resides in that area, anticipate an order for transfer and state the preferred venue for the hearing, giving a

reason. Simply inserting “for the convenience of the parties” or some such rubric is useless. If a client’s home address does not appear on the claim form, there may be delay when the judge asks where they live. If liability is admitted, the claim will invariably be transferred to the claimant’s home court. If the parties live at opposite ends of the country, speak to the opposition and see if an appropriate court can be agreed; otherwise everyone may be required to travel to a mutually inconvenient destination.

Following the application

The threatened application has actually been issued. Without breaking any confidences, delays in dealing with boxwork are common. District judges often see AQs weeks after they are sent in. Where is the application to strike out, for summary judgment, for

specific disclosure? Do not expect district judges to delay in allocating and, if they decide to chase you up, expect further delay.

Costs estimate

You have provided a costs estimate which appears to give at least lip service to the requirements of CPR PD 2.1. If you do not know what they are, you should find out. It would be unfortunate if a failure to comply resulted in adverse costs orders. After all, you are required to provide costs estimates at later stages in the litigation.

But what if the opponent decides to discontinue on the strength of a wholly inadequate estimate in the AQ? Have a look at CPR PD Costs 6.6. If your estimate leads to an inference that the costs are unreasonable and/or disproportionate, time saved now is money lost later.

Staying proceedings

You have explained why you would want or not want a stay. Even in the smallest cases, there is a duty to consider whether the claim might be compromised out of court (see Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576). The forms provide yes/no tick boxes, but it is helpful if the covering letter explains why. Frequently, one AQ requests a stay and the other does not. Equally frequently, in such cases the court will impose a stay pursuant to CPR 26.4(2)(b). If you really think nothing can be gained from a stay, make sure the judge knows why you take that view.

Directions

You have supplied properly drawn directions with a sensible timetable. You are encouraged to do so by CPR PD 26 2.2(3)(d). In a complex case, it is going to take the district judge 20 or 30 minutes to read the AQs and draw directions. It may take the court office a week or two to type them up and issue them – sometimes much longer.

You will save time by agreeing directions with the other side or lodging your preferred directions with your AQ. Do take the trouble to draft them properly, using the helpful precedents in the appendix to CPR PD 28. Shorthand orders such as “Disclosure 28 days. Witness statements 28 days thereafter” and the like are of little use. If directions in a multi-track case are to be approved without a hearing (CPR 29.4), they must be prepared properly.

Be ready to be called in if you want to rely on all the medical reports from the beginning. There is often no good reason why old reports should not be summarised and updated in the latest report prepared by the expert on whose evidence you actually intend to rely.

There is a serious message here: preparation of AQs should be taken more seriously. Time spent at this stage is likely to save time and expense as the case proceeds. Cutting corners at that stage is only likely to make matters more difficult later.

District Judge Peter Glover sits at Dartford County Court and is a member of the national committee of the Association of District Judges

Issue: 
Vol 151 no 11 16-03-07

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