PRACTICE DIRECTION - 5.2
CASE MANAGEMENT
A Scope of Application of this Practice Direction
1. This Practice Direction applies to all civil actions in the Court of First Instance (subject to Practice Direction 5.7) and the District Court, except cases in the specialist lists save to the extent that the Courts in charge of such lists may choose to adopt these directions in a particular case or in general.
2. The aim of this Practice Direction is to facilitate the more efficient, expeditious and fair disposal of cases.
3. Although the Court will encourage parties to compromise their disputes, the primary function and objective of the Court should be the just resolution of disputes in accordance with the substantive rights of the parties.
4. It is important for parties and their legal advisers to appreciate that efficient and cost effective resolution of disputes cannot be achieved without due diligence and cooperation on their part. The Courts will be proactive in case management in accordance with the underlying objectives set out in Order 1A.
B Preparation After Close of Pleadings
5. Discovery
The parties should proceed with discovery without the need to wait for an order of the Court and try to agree on the directions for modifying discovery obligations (e.g. limiting discovery to specified issues) or on the manner of their implementation (e.g. exchanging copy documents without the need to prepare lists of documents) with a view to achieving economies in respect of discovery.
6. Interlocutory applications:
(1) Parties should actively consider what interlocutory applications they will take out and endeavour to reach agreement on directions.
(2) Parties should focus on the relevant issues. Proliferation of efforts on irrelevant factual or legal disputes should be avoided.
(3) If they cannot reach agreement, the proper course is to take out the appropriate application as soon as possible. They should not send copies of correspondence to the Court for adjudication on the papers and the Court will not respond to it.
(4) Unnecessary and disproportionate interlocutory applications should not be made and will not be entertained. The same applies to unnecessary and unreasonable opposition. They will be met with adverse costs orders summarily assessed.
(5) Unnecessary hearings will be cut down. In circumstances where directions could fairly be given on paper without any oral hearing, the Court will do so.
C Timetabling Questionnaire
7. The Timetabling Questionnaire shall be filed and served in the form as per Appendix A.
8. The parties should consult each other but the process of consultation must not delay the filing of the Timetabling Questionnaire.
9. Each party shall give as much information as is required in the Timetabling Questionnaire to enable the Court to give directions relating to management of the case and to fix a timetable for the steps to be taken. Appendix A contains examples of such information.
10. Each party shall make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them in the Timetabling Questionnaire. Any unreasonable refusal to make any admission or agreement may be visited with costs sanctions.
11. The plaintiff of the original action shall consider whether, in the light of the information in the Timetabling Questionnaire of the defendant(s) and other parties, he ought to modify any of his initial proposals or incorporate other parties' directions and identify those directions that he disputes. The duty remains on him to communicate with the other parties with a view to agreeing the directions and timetable for the further progress of the case.
12. For cases in the Court of First Instance (but not in the District Court) the trial of which are likely to last 15 days or longer, parties shall also comply with Practice Direction 5.7 on Long Cases and apply to have the matter assigned to a trial judge.
D Steps to be Taken Where There is Agreement as to Directions
13. If the parties are able to reach agreement, the plaintiff shall, within 14 days after receiving the Timetabling Questionnaire from all defendants or when the time for all defendants to file the Timetabling Questionnaire expires (whichever is the earlier) procure and file a consent summons containing the agreed directions or timetable for the Court's consideration and approval.
14. Additionally, if a trial date or trial period is sought, it shall be attached to the consent summons referred to in paragraph 13 a certificate prepared by trial counsel or solicitor of each party giving time estimates (without taking into account the time estimates of other parties) of:
(1) his own opening submission;
(2) evidence-in-chief of each of his own witnesses;
(3) cross-examination of each of the other side's witnesses; and
(4) his own closing submission.
15. Nothing in the foregoing paragraphs prevent the parties from filing a single set of Timetabling Questionnaire containing the joint views of the parties together with a consent summons containing the directions which they invite the Court to make.
E Steps to be Taken Where There is No Agreement as to Directions
16. If the parties are unable to agree all directions or the timetable or if the defendant does not file a Timetabling Questionnaire, the plaintiff shall take out a case management summons:
(1) within 14 days after receiving the Timetabling Questionnaire from all defendants; or
(2) within 14 days upon expiry of the period for the defendant(s) to file and serve a Timetabling Questionnaire
whichever is the earlier.
17. For cases involving litigants in person, the plaintiff (whether legally represented or not) must take out a case management summons for directions within the time limit prescribed under paragraph 16 above.
18. The case management summons shall set out:
(1) all directions and timetable that can be agreed; and
(2) each party's proposal in respect of the directions and the timetable that cannot be agreed.
A sample form of a case management summons is annexed at Appendix B.
F The Court's Approach to Timetabling and Directions
19. The Court will consider the Timetabling Questionnaires and other documents lodged / filed to decide what directions are needed and what the timetable should be. It will give great weight to agreed directions and time limits put forward by the parties, although it will retain discretion to override the agreement where it considers the agreed directions and time limits to be unreasonable.
20. Regarding expert evidence:
(1) the Court will not give permission for a party to adduce expert evidence unless that party has:
(a) identified the expert by name and field;
(b) identified the issue to which the expert evidence will relate (a mere reference to adducing expert evidence "limited to the issue of liability" or "limited to the issue of quantum" is not sufficient); and
(c) considered the appropriateness of appointing a single joint expert in the case.
(2) A party who obtains expert evidence before obtaining leave does so at his own risk as to costs, except where he obtained the evidence in compliance with a pre-action protocol.
21. Unless it appears to the Court that a hearing is necessary, the Court will make orders nisi giving case management directions and fix a timetable for the proceedings in the light of the Timetabling Questionnaires and other documents filed / lodged and without a hearing.
22. Any party who objects to one or more of the directions given in an order nisi should apply to the Court for variation within 14 days after the order is made, failing which the directions shall become absolute.
G Case Management Conference ("CMC")
23. A CMC will be held pursuant to the timetable laid down by the Court.
24. Not less than 7 days before the date fixed for a CMC, each party shall file and serve the Listing Questionnaire at Appendix C and paragraphs 25 to 32 below will apply.
25. If a trial date is sought, the parties should file and serve together with his Listing Questionnaire a certificate (preferably prepared by counsel who will handle the trial) giving time estimates (without taking into account the time estimates of other parties) of:
(1) his own opening submission;
(2) evidence-in-chief of each of his own witnesses;
(3) cross-examination of each of the other side's witnesses; and
(4) his own closing submission.
26. Not less than 3 clear days before the date fixed for a CMC, the plaintiff shall lodge with the Court a bundle ("the CMC bundle") containing copies of pleadings, witness statements, expert reports and a draft index of the document bundle. Where possible the CMC bundle should be updated and re-used at subsequent CMC(s) (if any) and Pre-Trial Review(s) ("PTR") (if any). The index to the CMC bundle should highlight the updated parts to assist the master or judge.
27. At the initial stage of an action, a CMC is generally heard by a master. A master may, if he considers appropriate, either adjourn the CMC to a judge or refer the action to a judge for holding a CMC. The decision of a master in this regard is final.
28. A CMC is a critical stage in the proceedings and for most of the cases virtually the only milestone event before trial. It is not a second opportunity for the parties to ask for directions which they could have sought after they have first filed their Timetabling Questionnaires.
29. Parties are expected to have complied with the timetable laid down by the Court by the time of the CMC. Unless sufficient grounds have been shown to it, the Court will not grant extensions of time for compliance. If it does, the grant of extension will most likely be on an unless order basis with self-executing sanctions.
30. The parties are also expected to indicate accurately and fully the extent of further interlocutory applications or appeals to be made.
31. The later in time and the closer to a trial date an application is made, the less likely it is for the Court to entertain it.
32. The Court will at a CMC:
(1) review the steps which parties have taken in the preparation of the case, and in particular their compliance with any directions that the Court may have given;
(2) decide and fix a timetable for the steps which are to be taken by the parties to secure the progress of the case in accordance with the underlying objectives;
(3) ensure as far as it can that all admissions that can be made and all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded;
(4) adjourn the CMC to another date, fix a date for PTR, or fix the trial date or a trial period; and
(5) ascertain the parties' attempt or intention to undergo alternative dispute resolution.
H PTR
33. Where the Court decides to hold a PTR, it will normally be held about 8 to 10 weeks before the trial date or the beginning of the trial period. A PTR is generally dealt with by the trial judge.
34. A PTR is not an extension of the CMC. The Court expects a case to be ready for trial. Late interlocutory applications may be dismissed on the basis of delay alone.
35. Not less than 3 clear days before the date fixed for a PTR, the plaintiff shall lodge with the Court an updated bundle containing copies of documents as specified under paragraph 26 herein.
36. At the PTR, the Court will:
(1) fix the starting date for the trial if a trial period has been fixed;
(2) confirm or vary the estimated length of the trial in the light of completed interlocutory steps;
(3) give any further directions needed (including any needed extensions of time for interlocutory tasks not yet completed, or any appropriate unless order on terms as to costs) provided that such directions will not impinge upon the trial date; and
(4) give directions in relation to the trial under Order 35, rule 3A.
I Setting Down for Trial
37. The party setting a case down for trial must file with the Registry the form at Appendix D.
J Variation of Court-Determined Directions or Timetable
38. The parties should note that case management decisions are matters within the discretion of the master or the judge making that decision and are generally not susceptible to appeals.
39. Where there has been a change in the circumstances since the directions were given and the timetable was fixed, the Court may set aside or vary a direction it has given or give further directions either on application or on its own initiative.
40. Where all the parties agree to a variation of the time limits for non-milestone events in the timetable, they may effect such variations by recording the agreement in a consent summons, provided that the agreed variations do not involve or necessitate changes to any milestone date.
41. Where the parties cannot agree on extension of time:
(1) The party in default should take out the appropriate application as soon as possible. Such an application will not be granted as a matter of course, but only on sufficient grounds being shown and on the applicant satisfying the Court that he would be able to comply with an extension without impinging on the trial date or trial period.
(2) Alternatively, any other party may apply for an order to enforce compliance or for a sanction to be imposed or both of these.
An application for extension will only be granted, if at all, on the basis of an immediate unless order prescribing a suitable sanction should there be any further non-compliance.
42. Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.
K Attendance at Hearings for Directions, CMCs or PTRs
43. The Court may hold a hearing on its own motion especially where litigants in person are involved.
44. All hearings for CMC and PTR should be attended by the parties themselves or, if they are represented, by their legal representatives.
45. Unless otherwise directed by the Court, all hearings for CMC and PTR before a judge should be attended by the trial counsel.
46. A legal representative who attends a hearing should be the person responsible for the case and must in any event be familiar with it, be able to provide the Court with the information it is likely to need to make its decisions about case management, and having sufficient authority to deal with any issues that are likely to arise.
L Costs Sanction
47. Where a hearing is necessitated due to the fault or default of a party (such as failure to comply with this Practice Direction or failure to cooperate), the Court may consider ordering that party to pay the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and / or order them to be paid forthwith.
48. Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, he will likely be visited with an order for the costs wasted.
M Commencement Date
49. This Practice Direction supersedes the previous Practice Direction 5.2 on Setting Down for Trial in the Court of First Instance.
50. This Practice Direction shall come into effect on 2 April 2009.
Dated this 12th of February 2009.
| (Andrew Li) | |
| Chief Justice |