CIVIL PROCEDURE BACK TO BASICS 85: DIRECTIONS AND COURT ORDERS SHOULD BE “REALISTIC AND ACHIEVABLE”

One aspect of the Denton decision that is often overlooked, but which was very welcome, was the Court of Appeal’s message to the courts (and the parties) that any directions given should be “realistic and achievable.”

 

WHAT WAS SAID IN DENTON: DIRECTIONS SHOULD BE “REALISTIC AND ACHIEVABLE”

44. We should also make clear that the culture of compliance that the new rules are intended to promote requires that judges ensure that the directions that they give are realistic and achievable. It is no use imposing a tight timetable that can be seen at the outset to be unattainable. The court must have regard to the realities of litigation in making orders in the first place. Judges should also have in mind, when making  directions, where the Rules provide for automatic sanctions in the case of default.
Likewise, the parties should be aware of these consequences when they are agreeing directions. “Unless” orders should be reserved for situations in which they are truly required: these are usually so as to enable the litigation to proceed efficiently and at proportionate cost. 

THE JACKSON REPORT SAID EXACTLY THE SAME THING

The Jackson report said exactly the same thing.

““The conclusions to which I have come are as follows. First, the courts should set realistic timetables for cases and not impossibly tough timetables in order to give an impression of firmness.”

REALISTIC TIMETABLES AND COURT MANAGEMENT

I have heard anecdotes (but never experienced) of judges roughshod over proposed directions and timetables and giving directions that were unachievable (and which were in fact appealed).  I suspect that sometimes the problem lies in a failure by the parties to explain the matter to the court.  Case management should not, normally, be an adversarial stage of litigation.  Useful guidance can be found in the Justice Guide to Case Management  (This is aimed at litigants in person but provides a useful aide memoire for practitioners).

At least 3 clear days before the case management conference the Claimant must file and send to the other party or parties preferably agreed and by email:

  1. draft directions
  2. a chronology
  3. a statement of the issues
  4. a case summary.
The Claimant, in co-operation with the other party or parties, must help the judge by suggesting the directions that are thought to be needed.
Describe the directions you think the judge should give. It is better not to try drafting a directions order without qualified help.
A chronology is a list, with dates and in date order, of the events leading up to the claim.
A statement of the issues identifies the matters on which the parties disagree, briefly describing the position taken by each of the parties on each matter.
A case summary is a concise but complete overview of the whole case.
These documents should be discussed among the parties so that agreed versions can be given to the judge if possible.

 

The statement of issues and case summary, in particular, can be used in appropriate cases, to set out why a particular timetable is necessary. It is possible for this to be done without turning these documents into argumentative documents or skeleton arguments for one side.

AVOIDING PITFALLS

It helps to know at the Case Management Stage (and I stress know not guess) :

  • What is required for disclosure and how long this will take.
  • Who is likely to be giving evidence.
  • Are their witness statements prepared?
  • If witness statements are ready how long will they take to complete?
  • Are any of the witnesses likely to be abroad/unable to be reached in the relevant time period?

Experts

Experts deserve a special mention in relation to directions and timetables.

  • Do you know exactly what experts are being instructed?
  • Do those experts know the timetable?
  • Do you have written confirmation from the experts as to how long they are likely to take to complete their report?
  • Have the experts indicated that they need extra information? If so what and how long will it take to get it?

 

Useful reading on experts and directions

See:

  • The guidance on instructing experts from “across the pond”.
  • The judgment of Master Cook in Chambers -v- Buckingham   (I know that this was pre-Denton, however there is little doubt that the same decision would be made even with the benefit of the clarification that Denton provided).