Kershaw v Roberts & anr [2014] EWHC 1037 (Ch)

Analysis

This hearing was an appeal from a decision of His Honr Judge Philip in which that judge found that an earlier hearing in the matter had not been a case management conference (CMC) and that therefore the respondent defendants were under no obligation to file and serve a costs budget seven days in advance of it. The claimant had contended that the earlier hearing had been a CMC and renewed that submission in the current hearing. The claimant’s submissions raised general issues as to whether the first hearing in a Part 8 claim, alternatively the first directions hearing, in such a claim was necessarily a CMC.

The claimant had brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975, (the 1975 Act). The claim was issued in the Taunton County Court on 13 September 2013 under Part 8, which procedure is mandated for such a claim. On 23 September 2013 the court sent out a ‘notice of directions’ which listed a ‘directions hearing’ in the matter for 21 November 2013. A later notice was sent out which indicated that the ‘directions hearing’ had been scheduled to take place by telephone.

On 14 November 2013 the claimant served by fax a costs budget in precedent form H. In response the defendants served their own costs budget in form H, apparently on 19 November 2013, but not received before the hearing. The telephone hearing took place. The claimant submitted that it was a CMC and that the defendants had failed to serve their costs budget in time and under CPR
r3.14, their budget should be limited to their court fees only. Having heard counsel for all parties the judge inter alia allocated the claim to the multi-track, transferred it to Rhyl County Court and directed that Rhyl County Court would list the matter for a CMC on receipt of the file from Taunton County Court.

The CMC was listed before Judge Hughes on 30 January 2014. The judge found that the Taunton hearing had not been a CMC and therefore had given rise to no obligation to serve costs budgets. He then considered the costs budgets and gave directions. He ordered that the costs of the Taunton hearing and of the hearing before him be costs in the claim.

The claimant then appealed Judge Hughes’ ruling that the Taunton hearing was not the first CMC. The defendants cross-appealed against the judge’s costs order.

The claimant submitted that the rules 3.12-3.14 of the CPR (as then in force) applied to ‘all multi-track cases’. Further, that r8.9(c) stated that ‘Where the Part 8 procedure is followed’ ‘the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply’. Thus, she submitted, costs management provisions applied to Part 8 claims. She drew support from the commentary in the White Book 2014 on r3.13. She submitted further that although the hearing at Taunton had been described as a ‘directions hearing’ any hearing for directions in a Part 8 claim is a CMC. She relied on the commentary at note 8.0.5 of the White Book 2014, which could be read as indicating that there was no difference between a CMC and a directions hearing. The claimant drew also on Part 29 of the CPR, which dealt with multi-track cases. She submitted that it did not provide for a directions hearing that was not a CMC and that when taken together with the treatment of Part 8 claims as allocated to the multi-track under r8.9 it supported her case. As a result, she argued, the defendants’ costs budgets had not been filed and served in time and should be restricted to the applicable court fees.

The judge considered the relevant provisions of the CPR: the differences between Part 7 and Part 8, the nature and purpose of the different tracks, the mechanics of multi-track claims, the use in the CPR of the term ‘case management conference’.

Held:

1. 1) CMCs are a creature of Part 29 and the express power to fix such a hearing is triggered by the allocation of a claim to the multi-track by the court. It is this actual allocation that triggers the various procedural obligations attaching to a CMC.
2. 2) As a matter of construction of the CPR until a claim is allocated by the court to the multi-track the CMC provisions of Part 29 do not apply.
3. 3) There are in addition sound practice reasons why this should be so. If it were otherwise it would mean that costs budgeting would be required in all sorts of cases which normally proceed by way of Part 8. This would result in unnecessary costs being expended and run counter to the premise of the CPR, the spirit of the Jackson reforms and the decision in Mitchell.
4. 4) In the circumstances the claimant’s appeal was refused.
5. 5) The Taunton hearing did not deal with an issue on which the claimants lost. The order that the costs of that hearing be costs in the claim was appropriate. However, the claimant had lost on an issue that took up approximately half the time of the hearing before Judge Hughes. In the circumstances the defendants’ cross appeal was allowed and the costs order replaced with an order that the claimant pay half the defendants’ costs of and occasioned by the hearing on 30 January 2014, the other half being costs in the claim.
6. 6) The substantive issue in this appeal would soon (22 April 2014) become of historical interest only. On that date the Civil Procedure (Amendment No 4) Rules 2010 (SI 2014 No 867) would come into force. That instrument amended r3.12(1) so that it would expressly apply only to all Part 7 multi-track cases, with some exceptions. Part 8 claims would therefore be excluded from the CPR costs management provisions unless the court made a positive order that they apply.

JUDGMENT HICKINBOTTOM J Introduction [1] This appeal raises a number of issues concerning claims brought under Part 8 of the Civil Procedure Rules (CPR); and, in particular, the case management and costs management of such claims. [2] The appellant claimant appeals the judgment and order of His Honour Judge Philip Hughes of 30 January 2014, …

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