E-BUNDLE PRACTICE DIRECTION FROM BIRMINGHAM MERCANTILE COURT: THE SHAPE OF THINGS TO COME
I posted yesterday on the new procedure for e-bundles in the House of Lords and Privy Council. HH Simon Brown QC has sent me a cop of the e-court direction that applies in the Birmingham Mercantile Court. It probably reflects the shape of things to come so is well worth studying in detail. (Note that this post was updated on the 10th September 2014 to put full details of directions and add the Guidance Note and Checklist.
“Birmingham Mercantile eCourt Guide
- This guide is intended to encourage and facilitate the use of electronic bundles (‘eBundles’) of documents and video conferencing (‘VC’) in court hearings, in accordance with the duty of the court to further the overriding objective by ‘making use of technology’: CPR 1.4(2) (k).
- Electronic documents accessible securely via the internet may be used for court hearings and applications where adequate wifi is available and such e-working is approved by the Judge and comparatively budgeted for. All other ‘court documents’ must be served and filed in accordance with CPR 5.
- Video conferencing may be used by the court to see and hear parties and witnesses remotely and securely via their PC’s where adequate wifi is provided and such e-working is approved by the Judge using a Windows 8.1 laptop and its IP connection.
- Whilst other specifications may be usable, optimum performance is gained through wifi or 3G access (4G for VC) using Internet Explorer (version 10+), Firefox, Safari or Chrome browsers on devices with 20cm diagonal screen size or greater.
- The parties must, together (by self service or by a service provider), arrange the preparation of a single redacted, de-duplicated and scanned eBundle (mirroring any hard copy) with documents within it being numbered sequentially with selectable text, continuous versioning, search, annotation, bookmarking & hyperlinking facilities and commentary summary. The eBundle must be securely stored in the Cloud and access given to the parties, court clerk and Judge by email notification of links to the eBundle. Subsequent additional documents must be interleaved within the same eBundle with sub-numbering so as to maintain the continuous numbering of the originally submitted eBundle. Use of an eBundle means that all documents will be presented through the single eBundle.
- The parties must, together, arrange for such video conferencing as permitted by the Judge and provide the Court Clerk with the Judge’s pass code in due time for IP laptop connection and ISDN by the Court.
- The display of all documents must be 100% size and readable. Video must be instant and clear both visually and audibly to all involved.
- The informed approval of Judge needs to be must be obtained for such eWorking both at inception and prior to any court hearing.
- The costs are all to be borne by the parties; none by the Court.
- The approved eBundle and VC facilities must be capable of working synchronously to enable everyone involved to work together in the usual court process in real time during the hearing.
- The eBundle should be capable of shared and collaborative access to its latest version with both group and individual access to private and shared annotations within it. It should also be available for both on-line and off-line working.”
THE MERCANTILE COURT CASE MANAGEMENT CONFERENCE NOTICE
Case Management Conference Notice
The Court follows Civil Procedure Rules [“CPR”] “with the overriding objective of enabling the court to deal with cases justly and at proportionate cost” (CPR 1.1). The Parties and their representatives are “required to help the court further the overriding objective” (CPR 1.3). The Court “must further the overriding objective by actively managing cases” (CPR 1.4) and “encouraging the parties to co-operate with each other in the conduct of the proceedings”.
The Mercantile Courts have a Ministry of Justice webpage:
This provides information, guidance and downloadable forms for all court users to access via the internet and to enable them fulfil their obligations to the court under CPR 1.3.
The Case Management Conference [“CMC”] is a crucial event in every case when the judge will “actively” manage the case in conference with the parties & their representative giving directions at its conclusion covering all the steps to be taken by the parties through to trial within budgets for each phase of work agreed between the parties or approved by the court at the CMC.
Practice Direction 59 paragraph 7.7 requires the Claimant (or Applicant) to provide the Judge with a complete file of the parties case management documents not less than 7 days before the CMC. Using the downloadable Forms section in the Mercantile Courts website, this should be an indexed & paginated file of papers (or, upon the Judge’s express permission or direction, an ‘e-bundle’ i.e. a secure electronic bundle accessible and reviewable by the Judge over the internet) including:
- Contact names, postal addresses, telephone numbers and e-mail addresses of advocates, solicitors & parties representatives.
- Claim form;
- Statements of case (excluding schedules of more than 15 pages);
- Orders already made;
- Case management information sheets [“CMIS”] http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/case-management-info-eng.doc
- Disclosure Reports (Form N263) & any agreed Protocol
- Electronic Disclosure Questionnaires (Form N264) http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2429
- Draft List of issues to be tried;
- Draft composite proposed Directions (also sent in by e-mail as an attachment in Word format to the mercantile court e-mail address); http://hmctscourtfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2367
- Costs Budgets using prescribed Form https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/preview/pd3e-precedent-h-revised-wef-22-april-2014.xls in Excel; https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/preview/pd3e-precedent-h-revised-wef-22-april-2014.pdf in PDF (also sent in by e-mail as an attachment in revisable electronic Excel format to the mercantile court e-mail address) following Guidance Notes on Precedent H http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/new-precedent-h-guidance.pdf.
Also a statement indicating the extent to which budgets are agreed or not agreed (see important notes below).
- The parties are reminded that any date set by the court for doing any act may not be varied by the parties if the variation would make it necessary to vary the date fixed for case management conference, review, filing of a pre trial review checklist or the trial or trial period (CPR Part 29.5). Any proposed variation which might have this effect should accordingly be notified to the court which, provided that all parties consent to the variation, may deal with the proposal on paper.
- Where a judge’s Case Management File has been retained by the court, this bundle may be supplemented and given a new Index in order to provide the file for the hearing. It is the responsibility of the parties to maintain the file throughout the case and keep it up to date.
- Where any other party intends to apply for a direction of which it is helpful to give specific notice beyond that to be provided on the Case Management Information Sheet, that party shall give written notice to the Court and to the other parties with its Information Sheet.
- Representatives attending the Conference must be properly familiar with the case and able to deal with all matters, including the budgets of both sides, which may arise. If Counsel has been instructed in the case but will not be attending the Conference, the Solicitor should discuss the case with Counsel for the purpose of the conference.
- Costs Budgets: A party to proceedings in the Birmingham Mercantile Court must file its budget in prescribed form, and serve a copy on all other parties, no later than 14 days prior to the date fixed for the first CMC. Budgets must be discussed between the parties with a view to identifying whether and to what extent they are agreed or disagreed. Where budgets are agreed between the parties, the court will duly record that fact. Where not agreed, the court will only approve estimates of costs that are “proportionate” (CPR 3.18 and CPR 44.3(2)(a)and (5)). With a view to the Court making a costs management order, each party shall produce, in time for inclusion in the CMC bundle along with its costs budget, a brief statement either confirming that each of the parties’ costs budgets is agreed or, if not agreed, identifying points of disagreement, giving brief reasons. A party who fails to file a budget at court 7 days before the first CMC, shall be treated as having filed a budget comprising only the applicable court fees (CPR 3.14).
- In straightforward cases, the parties may submit agreed Directions not less than 7 days in advance of the Conference for the approval of the Judge. The Judge may then make the Directions proposed, or make them with variations, or may require the Case Management Conference to proceed. The parties must assume that the Conference will proceed until informed by the Court that it is not required.
- If the time estimate appears to be insufficient, the Court should be informed immediately.
Failure to comply with the above directions, any orders, rules or practice directions is liable to result in Sanctions.
Relief from Sanctions is limited where ‘to all the circumstances of the case, so as to enable it to deal justly with the applications, 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.’ (CPR 3.9).
The Court will be using a Checklist, as below, in order to ensure compliance.
His Honour Judge Simon Brown QC
Specialist Mercantile Judge
Birmingham Civil Justice Centre
Clerk: Helen Foster firstname.lastname@example.org Tel: (0121) 681 3035
Case No. v.
PRE CMC CHECKLIST
|Judge’s Case Management file (must be filed by Claimant 7 days before CMC)|
|Budgets in Form H format. https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/preview/pd3e-precedent-h-revised-wef-22-april-2014.xls in Excel; https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/preview/pd3e-precedent-h-revised-wef-22-april-2014.pdf in PDF.|