NEW FIXED COSTS RULES: THE NEW PART 28: CASE MANAGEMENT IN THE INTERMEDIATE TRACK: THE LENGTH OF WITNESS STATEMENTS AND EXPERT REPORTS

The new fixed costs provisions introduce the concept of the “Intermediate Track”.  One point to note about this track is that there are specific rules about applying for directions.  There are also very specific obligations in relation to the length of witness statements and experts reports.

“(3) The following provisions apply in respect of directions in the intermediate track,
unless the court orders otherwise—
(a) rules 28.2(3) and (4) apply in respect of disclosure;
(b) the total length of all the permitted witness statements and witness summaries of a
party shall not exceed 30 pages; and

(c) any expert report shall not exceed 20 pages, excluding any necessary photographs,
plans and academic or technical articles attached to the report.”

THE NEW CPR PART 28

The old CPR Part 28 is removed and a new rule introduced.  This contains provisions relating to management in the fast and intermediate tracks.  The section to pay close attention to is the new Part IV – which deals with procedure on the intermediate track.

THE RULES

Scope of this Part

28.1. This section contains general provisions about the management of cases allocated to
the fast and intermediate tracks. Section II contains further provisions about the
management of cases allocated to the fast track, other than for cases of noise induced
hearing loss. Section III contains provisions about the management of noise induced
hearing loss cases allocated to the fast track. Section IV contains further provisions about
the management of cases allocated to the intermediate track.
(Part 27 sets out the procedure for claims allocated to the small claims track.)
(Part 29 sets out the procedure for claims allocated to the multi-track.)

General provisions

28.2.—(1) When it allocates a case to the fast track or intermediate track, the court shall
give directions for the management of the case and set a timetable for the steps to be taken
between the giving of the directions and the trial.
(2) When it gives directions, the court shall—
(a) make an order in relation to disclosure; and
(b) either—
(i) fix the trial date; or
(ii) fix a period, not exceeding 3 weeks, within which the trial is to take place.
(3) In claims within Section II and Section IV of this Part, other than in respect of claims
which include a claim for personal injury, the court shall decide, having regard to the
overriding objective and the need to limit disclosure to that which is necessary to deal with
the case justly, which of the following orders to make in relation to disclosure—
(a) an order dispensing with disclosure;
(b) an order that a party disclose the documents on which it relies, and at the same
time request any specific disclosure it requires from any other party;
(c) an order that directs, where practicable, the disclosure to be given by each party on
an issue-by-issue basis;
(d) an order that each party disclose any documents which it is reasonable to suppose
may contain information which enables that party to advance its own case or to
damage that of any other party, or which leads to an enquiry which has either of
those consequences;
(e) an order that a party give standard disclosure;
(f) any other order in relation to disclosure that the court considers appropriate.
(Rule 31.6 explains what is meant by standard disclosure.)
(4) Unless the court otherwise orders, disclosure under Section II and Section IV of this
Part in respect of claims which include a claim for personal injury shall be standard
disclosure.
(5) The trial date or trial period shall be specified in the notice of allocation.
Variation of case management timetable

28.3.—(1) A party must apply to the court if they wish to vary any date which the court
has fixed for—
(a) any case management conference;
(b) any pre-trial review;
(c) filing the pre-trial check list;
(d) the trial; or
(e) the trial period.
(2) Any date set by the court or these Rules for doing any act may not be varied by the
parties if the variation would make it necessary to vary any of the dates mentioned in
paragraph (1).
(Rule 2.11 allows the parties to vary a date by written agreement except where the rules
provide otherwise or the court orders otherwise.)
Pre-trial check list (listing questionnaire)
28.4.—(1) The court shall send the parties a pre-trial check list (listing questionnaire) for
completion and return by the date specified in the notice of allocation unless it considers
that the claim can proceed to trial without the need for a pre-trial check list.
(2) The date specified for filing a pre-trial check list shall not be more than 8 weeks
before the trial date or the beginning of the trial period.
(3) If no party files the completed pre-trial check list by the date specified, the court shall
order that unless a completed pre-trial check list is filed within 7 days from service of that
order, the claim, defence and any counterclaim shall be struck out without further order of
the court.
(4) If—
(a) a party files a completed pre-trial check list but another party does not;
(b) a party has failed to give all the information requested by the pre-trial check list; or
(c) the court considers that a hearing is necessary to enable it to decide what directions
to give in order to complete preparation of the case for trial,
the court may give such directions as it thinks appropriate.
Fixing or confirming the trial date and giving directions
28.5.—(1) As soon as practicable after the date specified for filing a completed pre-trial
check list the court shall—
(a) fix the date for the trial, unless it has already done so;
(b) give any directions for the trial, including a trial timetable, which it considers
appropriate; and
(c) specify any further steps that need to be taken before trial.
(2) The court shall give the parties at least 3 weeks’ notice of the date of the trial unless,
in exceptional circumstances, the court directs that shorter notice be given.
Conduct of trial
28.6. Unless the trial judge otherwise directs, the trial shall be conducted in accordance
with any order previously made.

SECTION II
Provisions Applying Only to Cases Allocated to the Fast Track
Directions

28.7.—(1) The matters to be dealt with by directions under rule 28.2(1) include—
(a) disclosure of documents;
(b) service of witness statements; and
(c) expert evidence.
(Rules 28.2(3) and (4) deal with orders for disclosure.)
(Rule 26.9(6) deals with limitations in relation to expert evidence and the likely length of
trial in fast track cases.)
(2) Directions to be given under rule 28.2(1) shall be in the form set out at
http://www.justice.gov.uk/courts/procedure-rules/civil, unless the court orders otherwise.
Costs
28.8. The court’s power to award costs is limited in accordance with Section VI and
Section IX of Part 45.

SECTION III
Provisions Applying Only to Noise Induced Hearing Loss Cases Allocated to the Fast Track
Directions

28.9. Directions to be given under rule 28.2(1) shall be in the form set out at
http://www.justice.gov.uk/courts/procedure-rules/civil, unless the court orders otherwise.
Limitation
28.10.—(1) The court may order a preliminary trial on limitation if satisfied that it is
necessary in the interests of justice to do so.
(2) If any party seeks a direction for a preliminary trial on limitation, this must be
identified in that party’s directions questionnaire.
(3) Where a preliminary trial on limitation is ordered in respect of one or more, but not
all, defendants, the claims against all the other defendants shall be stayed until
determination of the preliminary issue.
Costs
28.11. The court’s power to award costs is limited in accordance with Section VIII and
Section IX of Part 45.

THE NEW RULES GOVERNING THE INTERMEDIATE TRACK

SECTION IV
Provisions Applying Only to Cases Allocated to the Intermediate Track

Case management conference

28.12. The court shall fix a case management conference and may fix a pre-trial review.
Agreement of directions

28.13. The parties must endeavour to agree appropriate directions for the management of
the proceedings and submit agreed directions, or their respective proposals to the court at
least seven days before any case management conference. Where the court approves agreed
directions, or issues its own directions, the parties shall be so notified by the court and the
case management conference will be vacated accordingly.

Directions

28.14.—(1) The matters to be dealt with by directions under rule 28.2(1) include—
(a) disclosure of documents;

(b) service of witness statements;
(c) expert evidence;
(d) whether to fix a pre-trial review; and
(e) listing the case for trial.
(2) The following provisions apply in respect of directions in the intermediate track—
(a) oral expert evidence is limited to one witness per party, save where the oral
evidence of a second expert for any party is reasonably required and is
proportionate; and
(b) the trial time estimate must not exceed 3 days.
(3) The following provisions apply in respect of directions in the intermediate track,
unless the court orders otherwise—
(a) rules 28.2(3) and (4) apply in respect of disclosure;
(b) the total length of all the permitted witness statements and witness summaries of a
party shall not exceed 30 pages; and
(c) any expert report shall not exceed 20 pages, excluding any necessary photographs,
plans and academic or technical articles attached to the report.

Costs

28.15. The court’s power to award costs is limited in accordance with Section VII and
Section IX of Part 45.”