A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
The changes will impact all litigation involving housing providers that proceed through Court just as much as any other civil claims even though the media attention has mostly been focused on personal injury cases. Here’s what you need to know!
2 Cs - Costs and Compliance
The very first rule in the CPR is known as the overriding objective. This rule should be what any Judge dealing with a civil claim should have at the forefront of their mind to ensure that claims are dealt with justly. The new amendment adds that cases should also be dealt with at a proportionate cost. The amendment also requires Judges to enforce compliance with rules, practice directions and Orders.
Part 3 of the CPR governs the Court’s Case Management powers. Part 3 has been amended to state that the Court may contact the parties from time to time to check whether the Court directions have been complied with. Look out for letters, or even emails, arriving from the Court asking what the parties have been doing and whether those witness statements have been exchanged on time! Don’t ignore them.
Part 3.9 is the rule that parties can rely on when applying for relief from sanctions. For example, if a Defendant has an Unless Order made against them for failure to file Witness Statements he or she will have until a certain date to file them and if they still don’t file them, their Defence will be struck out. If this happens they can still apply to the Court for the Defence to be reinstated (called "relief") and they will do this under rule 3.9. This rule has been amended so that, before making an Order, the Judge must consider the need to conduct the case efficiently and at a proportionate cost and the need to enforce compliance with rules, practice directions and Orders.
What to Expect
- Judges are expected to be much more pro-active in managing directions timetables strictly and ask for details about the costs that the parties are incurring.
- Should you not serve e.g. your List of Documents in time and in accordance with the Court Order you may well find that your claim is struck out!
- If your claim is struck out it’s going to be much more of an uphill struggle getting the claim reinstated unless you had a very good reason for failing to comply with the Court Order in the first place.
You and your legal advisors must also have a clear view on costs from a very early stage until the final Trial of a matter. There is a new procedural requirement that in multi-track cases, issued on or after 1 April 2013, a costs budget must be filed. Multi-track cases are those that involve more complex issues and take more than one day Court time at a final hearing. This will include most contested ASB possession claims, for example.
A costs budget, or Form H as it will be known, is very detailed. It is filed at an early stage and indicates to the Court what the likely final costs will be in taking the matter forward. It must breakdown the costs for preparing documents for disclosure, preparing witness statements and the likely costs of Counsel at Trial – all well before these steps have been taken. Should a party depart from their costs budgets the Court may not allow recovery of those costs from the other side. It is vital therefore that you have a clear view of costs from an early stage and that these are reviewed throughout the case. Your legal advisors can’t simply give an overinflated estimate just to ensure that all costs are covered (!). The estimate must be realistic and well considered. Likewise, a legal advisor who underestimates the costs of the proceedings may find that their client is penalised at a later stage with costs over and above that stated on the budget filed being unrecoverable. Failure to file Form H can also lead to recoverable costs being limited.
Other Amendments to Consider
- The Directions Questionnaire replaces the Allocation Questionnaire (the peach coloured form the Court sends out once a Defence has been filed).
- Allocation to track. There is now no need for the parties to suggest which track a claim should be allocated to (small claims, fast or multi-track) as the Court staff will make this decision based on the papers. This will be a provisional allocation only and the parties can ask for the track to be changed if they feel it inappropriate, via the Directions Questionnaire.
- The Form H detailed costs estimate will also have to be filed with the Directions Questionnaire. Note that there is an automatic strike out should the Directions Questionnaire not be filed within 7 days of the date they were due (bear in mind the issues raised above regarding relief from sanction applications!);
- The financial limit on the small claims track has been raised to £10,000. Remember that no costs Orders can be made in the small claims track other than for the Court fees or where the other party has acted unreasonably. Housing disrepair claims, where the cost of the repair or the damages for non-repair are expected to be above £1,000, do not fall within the small claims track and will go to either the fast or multi-track depending on the issues involved;
- Disclosure. The usual Order made prior to 1 April 2013 was for "standard disclosure" which often meant that a whole house file needed to be disclosed to the other side. Standard disclosure will no longer be the usual order and the Court and the parties must look at the individual claim and decide what types of documents are most relevant to the issues and decide how far disclosure should go.
- Keep in mind the Court directions and ensure you comply with them.
- Equally, if the other side do not comply with directions, consider making a strike out application to the Court to deal with this drawing the Court’s attention to their failure.
- Keep costs in mind – proceedings must be dealt with economically, if not, don’t expect to recover those costs from the other side even if you are wholly successful at Trial.
For more information
For further information please contact Alex Loxton on 0121 214 3516 or firstname.lastname@example.org.
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