C2PART 3THE COURT'S CASE F43AND COSTS MANAGEMENT POWERS
Words in Pt. 3 Table of Contents inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(b)(i) (with rule 22)
Words in Pt. 3 Table of Contents inserted (19.3.2012) by The Civil Procedure (Amendment No.4) Rules 2011 (S.I. 2011/3103), rules 1, 4(a)(i)
Words in Pt. 3 Table of Contents inserted (19.3.2012) by The Civil Procedure (Amendment No.4) Rules 2011 (S.I. 2011/3103), rules 1, 4(a)(ii)
Words in Pt. 3 Table of Contents inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(b)(ii) (with rule 22)
Words in Pt. 3 Table of Contents inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(b)(iii) (with rule 22)
Pt. 3 applied (with modifications) (1.10.2007) by The Court of Protection Rules 2007 (S.I. 2007/1744), rules 1, 184(a)
F44SECTION I – CASE MANAGEMENT | |
The court’s general powers of management | Rule 3.1 |
Court officer’s power to refer to a judge | Rule 3.2 |
Court’s power to make order of its own initiative | Rule 3.3 |
Power to strike out a statement of case | Rule 3.4 |
Judgment without trial after striking out | Rule 3.5 |
F40Automatic transfer | F41Rule 3.5A |
Setting aside judgment entered after striking out | Rule 3.6 |
Sanctions for non-payment of certain fees | Rule 3.7 |
Sanctions have effect unless defaulting party obtains relief | Rule 3.8 |
Relief from sanctions | Rule 3.9 |
General power of the court to rectify matters where there has been an error of procedure | Rule 3.10 |
F45Power of the court to make civil restraint orders | Rule 3.11 |
F46SECTION II – COSTS MANAGEMENT | |
Application of this Section and the purpose of costs management | Rule 3.12 |
Filing and exchanging budgets | Rule 3.13 |
Failure to file a budget | Rule 3.14 |
Costs management orders | Rule 3.15 |
Costs management conferences | Rule 3.16 |
Court to have regard to budgets and to take account of costs | Rule 3.17 |
Assessing costs on the standard basis where a costs management order has been made | Rule 3.18 |
SECTION III – COSTS CAPPING | |
Costs capping orders - General | Rule 3.19 |
Application for a costs capping order | Rule 3.20 |
Application to vary a costs capping order | Rule 3.21 |
F47SECTION I Case Management
Pt. 3 Section 1 heading inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(c) (with rule 22)
The court’s general powers of managementI13.1
1
The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
2
Except where these Rules provide otherwise, the court may —
C1C3C4C5a
extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);
b
adjourn or bring forward a hearing;
c
require a party or a party’s legal representative to attend the court;
d
hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
e
direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
f
stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;
g
consolidate proceedings;
h
try two or more claims on the same occasion;
i
direct a separate trial of any issue;
j
decide the order in which issues are to be tried;
k
exclude an issue from consideration;
l
dismiss or give judgment on a claim after a decision on a preliminary issue;
m
take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.
3
When the court makes an order, it may —
a
make it subject to conditions, including a condition to pay a sum of money into court; and
b
specify the consequence of failure to comply with the order or a condition.
4
5
The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.
6
When exercising its power under paragraph (5) the court must have regard to—
a
the amount in dispute; and
b
the costs which the parties have incurred or which they may incur.
F16A
7
A power of the court under these Rules to make an order includes a power to vary or revoke the order.
F498
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.
Court officer’s power to refer to a judgeI23.2
Where a step is to be taken by a court officer—
a
the court officer may consult a judge before taking that step;
b
the step may be taken by a judge instead of the court officer.
Court’s power to make order of its own initiativeI33.3
1
Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
(Part 23 sets out the procedure for making an application)
2
Where the court proposes to make an order of its own initiative—
a
it may give any person likely to be affected by the order an opportunity to make representations; and
b
where it does so it must specify the time by and the manner in which the representations must be made.
3
Where the court proposes—
a
to make an order of its own initiative; and
b
to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days' notice of the hearing.
4
The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
5
Where the court has made an order under paragraph (4)—
a
a party affected by the order may apply to have it set aside(GL), varied or stayed(GL); and
b
the order must contain a statement of the right to make such an application.
6
An application under paragraph (5)(a) must be made—
a
within such period as may be specified by the court; or
b
if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.
F127
If the court of its own initiative strikes out a statement of case or dismisses an application F17(including an application for permission to appeal or for permission to apply for judicial review), and it considers that the claim or application is totally without merit—
a
the court’s order must record that fact; and
b
the court must at the same time consider whether it is appropriate to make a civil restraint order.
Power to strike out a statement of caseI43.4
1
In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
2
The court may strike out(GL) a statement of case if it appears to the court—
a
that the statement of case discloses no reasonable grounds for bringing or defending the claim;
b
that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
c
that there has been a failure to comply with a rule, practice direction or court order.
3
When the court strikes out a statement of case it may make any consequential order it considers appropriate.
4
Where—
a
the court has struck out a claimant’s statement of case;
b
the claimant has been ordered to pay costs to the defendant; and
c
before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,
the court may, on the application of the defendant, stay(GL) that other claim until the costs of the first claim have been paid.
5
Paragraph (2) does not limit any other power of the court to strike out(GL) a statement of case.
F136
If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit—
a
the court’s order must record that fact; and
b
the court must at the same time consider whether it is appropriate to make a civil restraint order.
Judgment without trial after striking outI53.5
1
This rule applies where—
a
the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and
b
the party against whom the order was made does not comply with it.
2
A party may obtain judgment with costs by filing a request for judgment if—
a
the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and
b
where the party wishing to obtain judgment is the claimant, the claim is for—
i
a specified amount of money;
ii
an amount of money to be decided by the court;
iii
delivery of goods where the claim form gives the defendant the alternative of paying their value; or
iv
any combination of these remedies.
F23
Where judgment is obtained under this rule in a case to which paragraph (2)(b)(iii) applies, it will be judgment requiring the defendant to deliver the goods, or (if he does not do so) pay the value of the goods as decided by the court (less any payments made).
F44
The request must state that the right to enter judgment has arisen because the court’s order has not been complied with.
F35
A party must make an application in accordance with Part 23 if he wishes to obtain judgment under this rule in a case to which paragraph (2) does not apply.
F42Automatic Transfer3.5A
If—
a
a claimant files a request for judgment which includes an amount of money to be decided by the court in accordance with rule 3.5; and
b
the claim is a designated money claim,
the court will transfer the claim to the preferred court upon receipt of the request for judgment.
Setting aside judgment entered after striking outI63.6
1
A party against whom the court has entered judgment under rule 3.5 may apply to the court to set the judgment aside.
2
An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application.
3
If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside(GL) the judgment.
4
If the application to set aside(GL) is made for any other reason, rule 3.9 (relief from sanctions) shall apply.
Sanctions for non—payment of certain feesI73.7
F51
This rule applies where—
a
b
c
d
the court has made an order giving permission to proceed with a claim for judicial review F26; or
F22e
the fee payable for a hearing specified by the relevant Fees Order is not paid.
(Rule 26.3 provides for the court to dispense with the need for F50a directions questionnaire and rules 28.5 and 29.6 provide for the court to dispense with the need for a F9pre-trial check list)
(Rule 54.12 provides for the service of the order giving permission to proceed with a claim for judicial review)
2
The court will serve a notice on the claimant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the claimant has not paid it or made an application for F24full or part remission.
3
The notice will specify the date by which the claimant must pay the fee.
4
If the claimant does not—
a
pay the fee; or
b
make an application for F27full or part remission of the fee,
by the date specified in the notice—
i
F18the claim will automatically be struck out without further order of the court; and
ii
the claimant F35will be liable for the costs which the defendant has incurred unless the court orders otherwise.
(Rule F5544.9 provides for the basis of assessment where a right to costs arises under this rule F36and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007 )
F285
Where an application for—
a
full or part remission of a fee is refused, the court will serve notice on the claimant requiring payment of the full fee by the date specified in the notice; or
b
part remission of a fee is granted, the court will serve notice on the claimant requiring payment of the balance of the fee by the date specified in the notice.
6
If the claimant does not pay the fee by the date specified in the notice—
a
F19the claim will automatically be struck out without further order of the court; and
b
the claimant F37will be liable for the costs which the defendant has incurred unless the court orders otherwise.
8
The period referred to in paragraph (7) is—
a
if the order granting relief is made at a hearing at which a claimant is present or represented, 2 days from the date of the order;
b
in any other case, 7 days from the date of service of the order on the claimant.
F143.7A
F291
This rule applies where—
a
a defendant files a counterclaim without—
i
payment of the fee specified by the relevant Fees Order; or
ii
making an application for full or part remission of the fee; or
b
the proceedings continue on the counterclaim alone and—
i
F51a directions questionnaire or a pre-trial check list (listing questionnaire) is filed without payment of the fee specified by the relevant Fees Order;
ii
the court dispenses with the need for F51a directions questionnaire or a pre-trial check list or both;
iii
these Rules do not require F51a directions questionnaire or a pre-trial checklist to be filed in relation to the claim in question; or
iv
the fee payable for a hearing specified by the relevant Fees Order is not paid.
2
The court will serve a notice on the defendant requiring payment of the fee specified in the relevant Fees Order if, at the time the fee is due, the defendant has not paid it or made an application for F30full or part remission.
3
The notice will specify the date by which the defendant must pay the fee.
4
If the defendant does not—
a
pay the fee; or
b
make an application for F31full or part remission of the fee,
by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court.
F325
Where an application for—
a
full or part remission of a fee is refused, the court will serve notice on the defendant requiring payment of the full fee by the date specified in the notice; or
b
part remission of a fee is granted, the court will serve notice on the defendant requiring payment of the balance of the fee by the date specified in the notice.
6
If the defendant does not pay the fee by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court.
7
If—
a
the defendant applies to have the counterclaim reinstated; and
b
the court grants relief,
the relief will be conditional on the defendant either paying the fee or filing evidence of F33full or part remission of the fee within the period specified in paragraph (8).
8
The period referred to in paragraph (7) is—
a
if the order granting relief is made at a hearing at which the defendant is present or represented, 2 days from the date of the order;
b
in any other case, 7 days from the date of service of the order on the defendant.
F15Sanctions for dishonouring cheque3.7B
1
This rule applies where any fee is paid by cheque and that cheque is subsequently dishonoured.
2
The court will serve a notice on the paying party requiring payment of the fee which will specify the date by which the fee must be paid.
3
If the fee is not paid by the date specified in the notice—
a
where the fee is payable by the claimant, the claim will automatically be struck out without further order of the court;
b
where the fee is payable by the defendant, the defence will automatically be struck out without further order of the court,
and the paying party shall be liable for the costs which any other party has incurred unless the court orders otherwise.
(Rule F5644.9 provides for the basis of assessment where a right to costs arises under this rule)
4
If—
a
the paying party applies to have the claim or defence reinstated; and
b
the court grants relief,
the relief shall be conditional on that party paying the fee within the period specified in paragraph (5).
5
The period referred to in paragraph (4) is—
a
if the order granting relief is made at a hearing at which the paying party is present or represented, 2 days from the date of the order;
b
in any other case, 7 days from the date of service of the order on the paying party.
6
For the purposes of this rule, “claimant” includes a Part 20 claimant and “claim form” includes a Part 20 claim.
Sanctions have effect unless defaulting party obtains reliefI83.8
1
Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.
(Rule 3.9 sets out the circumstances which the court F52will consider on an application to grant relief from a sanction)
2
Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.
3
Where a rule, practice direction or court order—
a
requires a party to do something within a specified time, and
b
specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties.
Relief from sanctionsI93.9
F531
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.
2
An application for relief must be supported by evidence.
General power of the court to rectify matters where there has been an error of procedureI103.10
Where there has been an error of procedure such as a failure to comply with a rule or practice direction—
a
the error does not invalidate any step taken in the proceedings unless the court so orders; and
b
the court may make an order to remedy the error.
F11Power of the court to make civil restraint orders3.11
A practice direction may set out—
a
the circumstances in which the court has the power to make a civil restraint order against a party to proceedings;
b
the procedure where a party applies for a civil restraint order against another party; and
c
the consequences of the court making a civil restraint order.
F48SECTION IICosts Management
Pt. 3 Sections 2, 3 inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(h) (with rule 22)
Application of this Section and the purpose of costs management3.12
F541
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 Court 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 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.
Filing and exchanging budgets3.13
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 budget3.14
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 orders3.15
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 conferences3.16
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 costs3.17
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 made3.18
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.)
SECTION IIICosts Capping
Costs capping orders – General3.19
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.
2
In this rule, “future costs” means costs incurred in respect of work done after the date of the costs capping order but excluding the amount of any additional liability.
3
This rule does not apply to protective costs orders.
4
A costs capping order may be in respect of –
a
the whole litigation; or
b
any issues which are ordered to be tried separately.
5
The court may at any stage of proceedings make a costs capping order against all or any of the parties, if—
a
it is in the interests of justice to do so;
b
there is a substantial risk that without such an order costs will be disproportionately incurred; and
c
it is not satisfied that the risk in subparagraph (b) can be adequately controlled by–
i
case management directions or orders made under this Part; and
ii
detailed assessment of costs.
6
In considering whether to exercise its discretion under this rule, the court will consider all the circumstances of the case, including—
a
whether there is a substantial imbalance between the financial position of the parties;
b
whether the costs of determining the amount of the cap are likely to be proportionate to the overall costs of the litigation;
c
the stage which the proceedings have reached; and
d
the costs which have been incurred to date and the future costs.
7
A costs capping order, once made, will limit the costs recoverable by the party subject to the order unless a party successfully applies to vary the order. No such variation will be made unless—
a
there has been a material and substantial change of circumstances since the date when the order was made; or
b
there is some other compelling reason why a variation should be made.
Application for a costs capping order3.20
1
An application for a costs capping order must be made on notice in accordance with Part 23.
2
The application notice must –
a
set out –
i
whether the costs capping order is in respect of the whole of the litigation or a particular issue which is ordered to be tried separately; and
ii
why a costs capping order should be made; and
b
be accompanied by a budget setting out –
i
the costs (and disbursements) incurred by the applicant to date; and
ii
the costs (and disbursements) which the applicant is likely to incur in the future conduct of the proceedings.
3
The court may give directions for the determination of the application and such directions may –
a
direct any party to the proceedings –
i
to file a schedule of costs in the form set out in paragraph 3 of Practice Direction 3F – Costs capping;
ii
to file written submissions on all or any part of the issues arising;
b
fix the date and time estimate of the hearing of the application;
c
indicate whether the judge hearing the application will sit with an assessor at the hearing of the application; and
d
include any further directions as the court sees fit.
Application to vary a costs capping order3.21
An application to vary a costs capping order must be made by application notice pursuant to Part 23.
Words in Pt. 3 heading inserted (1.4.2013) by The Civil Procedure (Amendment) Rules 2013 (S.I. 2013/262), rules 2, 5(a) (with rule 22)