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First Case Management Conference

Checklist of Matters likely to be considered at the first case management conference in relation to the Technology and Construction Court

The following checklist identifies the matters which the judge is likely to want to consider at the first case management conference, although it is not exhaustive: • The need for, and content of, any further statements of case to be served. This is dealt with in Section 5.5 below. • The outcome of the Construction and Engineering Pre-Action Protocol process, and the possible further need for Alternative Dispute Resolution. Alternative Dispute Resolution is dealt with in Section 7 below. • The desirability of dealing with particular disputes by way of a Preliminary Issue hearing. This is dealt with in Section 8 below. • the Technology and Construction Court may require a list of issues to be provided and updated during the course of the procedural steps, but this is often left to the pre-trial review. • Whether the trial should be in stages (eg. stage 1 liability and causation, stage 2 quantum). In very heavy cases this may be necessary in order to make the trial manageable. In more modest cases, where the quantum evidence will be extensive, a staged trial may be in the interest of all parties. • The appropriate orders in respect of the disclosure of documents and for a protocol to manage e-disclosure. This is dealt with in Section 11 below. The appropriate orders as to the exchange of written witness statements. This is dealt with in Section 12 below. It should be noted that, although it is normal for evidence-inchief to be given by way of the written statements in the Technology and Construction Court, the judge may direct that evidence about particular disputes (such as what was said at an important meeting) should be given orally without reference to such statements. • Whether it is appropriate for the parties to rely on expert evidence and, if so, what disciplines of experts should give evidence, on what issues, and whether any issues can be conveniently dealt with by single joint experts. This may be coupled with an order relating to the carrying out of inspections, the obtaining of samples, the conducting of experiments, or the performance of calculations. Considerations relating to expert evidence are dealt with in Section 13 below. The parties must be aware that, in accordance with the overriding objective, the judge will only give the parties permission to rely on expert evidence if it is both necessary and appropriate, and, even then, will wish to ensure that the scope of any such evidence is limited as far as possible. • Review of the parties’ costs budgets and the making of a Costs Management Order (subject to any financial threshold relevant to the case). In certain cases there is the possibility of making a costs capping order. See section 16.3 below. • Whether there will be any additional claims under Part 20. See section 5.5.4 below. • The appropriate timetable for the taking of the various interim steps noted above, and the fixing of dates for both the Pre-trial Review and the trial itself (subject to paragraph 5.4.2 below). The parties will therefore need to provide the judge with an estimate for the length of the trial, assuming all issues remain in dispute. Unless there is good reason not to, the trial date will generally be fixed at the first case management conference (although this may be more difficult at court centres with only one Technology and Construction Court judge). Therefore, to the extent that there are any relevant concerns as to availability of either witnesses or legal representatives, they need to be brought to the attention of the Technology and Construction Court on that occasion. The length of time fixed for the trial will depend on the parties’ estimates, and also the judge’s own view. If the parties’ estimate of trial length subsequently changes, they should inform the clerk of the assigned judge immediately. The fixing of the trial date at the case management conference is usually as a provisional fixture. Therefore no trial fee is payable at this stage. The Technology and Construction Court should at the same time specify a date upon which the fixture will cease to be “provisional” and, therefore, the trial fee will become payable. This should ordinarily be two months before the trial date. It should be noted that: • if the trial fee is not paid within 14 days of the due date, then the whole claim will be struck out: see Civil Procedure Rules 3.7 (1) (a) and (4); • if the Technology and Construction Court is notified at least 14 days before the trial date that the case is settled or discontinued, then the trial fee, which has been paid, shall be refunded: see fee 2.2 in Schedule 1 to the Civil Proceedings Fees Order 2004. For all purposes other than payment of the trial fee, the provisional date fixed at the case management conference shall be regarded as a firm date. Essentially, the judge’s aim at the first case management conference is to set down a detailed timetable which, in the majority of cases, will ensure that the parties need not return to court until the Pre-trial Review.

Costs and Case management and the first case management conference in General in relation to the Technology and Construction Court

The general approach of the Technology and Construction Court to costs and case management is to give directions at the outset for the conduct of the case, up to trial, and then throughout the proceedings to serve the overriding objective of dealing with cases justly and at proportionate cost. Since the introduction of costs management the control of costs will be an important factor in how cases are managed from the outset: the parties must read this section in conjunction with Section 16, which concerns costs management and cost capping. The judge to whom the case has been assigned has wide case management powers, which will be exercised to ensure that: • the real issues are identified early on and remain the focus of the ongoing proceedings; • a realistic timetable is ordered which will allow for the fair and prompt resolution of the action; • appropriate steps are taken to ensure that there is in place a suitable protocol for conducting e-disclosure (this should have been discussed by the parties at an early stage in the litigation and the parties may wish to use the TeCSA e-disclosure protocol (which can be found on its website). • in document heavy cases the parties will be invited to consider the use of an electronic document management system; it is important that this is considered at an early stage because it will be closely linked to e-disclosure; • costs are properly controlled and reflect the value of the issues to the parties and their respective financial positions. In cases commenced before 22 April 2014 and below the value set by the relevant Practice Direction (£2 million), this will be done by way of Costs Management Orders. For cases commenced after 22 April 2014, this limit is increased to £10 million by Civil Procedure Rules 3.12 (as amended). The attention of the parties is drawn to the amended rule. In order to assist the judge in the exercise of his costs and case management functions, the parties will be expected to co-operate with one another at all times. See Civil Procedure Rules 1.3. Costs sanctions may be applied, if the judge concludes that one party is not reasonably co-operating with the other parties. A hearing at which the judge gives general procedural directions is a case management conference (“case management conference”). case management conferences are relatively informal and business-like occasions. Representatives may sit when addressing the judge. The following procedures apply in order to facilitate effective case management: • Upon commencement of a case in the Technology and Construction Court, it is allocated automatically to the multitrack. The provisions of Civil Procedure Rules Part 29 apply to all Technology and Construction Court cases (but see paragraph 4.2.1 above). • The Technology and Construction Court encourages a structured exchange of proposals and submissions for case management conferences in advance of the hearing, including costs budgets, so as to enable the parties to respond on an informed basis to proposals made. • The judges of the Technology and Construction Court operate pro-active case management. In order to avoid the parties being taken by surprise by any judicial initiative, the judge will consider giving prior notification of specific or unusual case management proposals to be raised at a case management conference. The Technology and Construction Court’s aim is to ensure that where possible the trial of each case takes place before the judge who has managed the case since the first case management conference. Whilst continuity of judge is not always possible, because of the need to double- or triple-book judges and the need for High Court Judges to be deployed on other duties, or because cases can sometimes overrun their estimated length through no fault of the parties, this remains an aspiration of case management within the Technology and Construction Court. To ensure that costs are properly controlled the judge will consider at all stages of case management whether there are ways in which costs can be reduced. If the judge considers that any particular aspect has unnecessarily increased costs, such as prolix pleadings or witness statements, the judge may make a costs order disallowing costs or ordering costs to be paid, either on the basis of a summary assessment, or by giving a direction to the costs judge as to what costs should be disallowed or paid on a detailed assessment: see also paragraph 5.5.5 below.



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  • Article Name: First Case Management Conference
  • Author: Finlay Harris
  • Description: Checklist of Matters likely to be considered at the first case management conference in relation to the Technology and [...]

This entry was last updated: March 3, 2020

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