View from the bench | Be ready for robust case management

Anyone in any doubt about what robust case management entails need only refer to the fifth lecture in the implementation programme delivered by Lord Justice Jackson on 22 November 2011 entitled 'Achieving a culture change in case management'. In that lecture his lordship refers to "The Singapore Experience" during the 1990s. "Court orders were strictly enforced. The courts started to list 'pre-trial conferences' of their own motion in order to monitor progress. If parties were in default, they frequently had their claims or defences struck out

The effect of the new approach to case management was electric. In the early period there was much discontent within the profession. However, once parties had adapted to the new regime, it was generally recognised that the long term effect of the reforms was highly beneficial. The work of the profession increased.
"The enhanced efficiencies in court administration and case management played no small part in helping Singapore position itself as a major financial centre and a leading dispute resolution centre."

The writing then has been on the wall now for some time. The amendments to the CPR, introduced last week, include an amendment to the overriding objective that underlines the fact that dealing with cases justly includes "enforcing compliance with rules, practice directions and orders" and that the same form of words now forms an integral part of the new relief from sanction rule (still rule 3.9(1)).

In addition, the court's case management powers will include a new power that: "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." The scene is therefore set for 'Singapore II'.

However, robust case management necessitates a good deal more from judges than rigorously enforcing compliance. In the words of Lord Justice Jackson it entails

"(i) the delivery of effective case management directions by a judge with relevant expertise who is on top of the case (ii) moving the action along swiftly to settlement or trial as well as (iii) firm enforcement of directions once they have been given - i.e. a 'no nonsense' approach".

Judges will become far more proactive in the litigation than has generally been the case in the past. Consideration of the theory behind the new 'Costs and Case Management Conference' provides a good example of what being "robust" is intended to mean following "Big Bang".

At the CCMC, the parties will be required to present a cost budget setting out, in detail, the entire cost of running the case to and including trial. In order to prepare such budgets it will be essential for each party to plan its strategy for the case to trial from the outset. The identity of potential witnesses and experts will need to be ascertained and the cost of preparing their evidence, the extent and cost of providing disclosure will need to be calculated, the frequency of instructions/briefs to counsel will have to be determined in advance together with all other costs of bringing the case to trial.

The judge, who may be docketed to deal with the case throughout, will receive the case papers shortly after the defence is filed at court. The judge will then consider the statements of case and consider issuing an order, on the court's own initiative, to direct the parties' preparation for the CCMC.

Such an order might include a direction for each party to produce a concise case summary identifying the issues between the parties and how they respectively intend to address those issues in evidence, explaining what value each proposed witness will add to the case and explaining why it is necessary to instruct any expert.

If an expert is considered necessary by a party he or they will be expected to have approached the expert(s) in question in order to comply with the procedural requirements of CPR 35 and its practice direction and obtain accurate cost figures to enable them to prepare the required budget.

Such directions will clearly focus minds and it will be woe betide the party who fails to comply with the direction prior to the CCMC. If the budget is not prepared the recoverable costs will be restricted to the court fees only.

Robust is therefore a two way street - be warned, be ready, be prepared.