Case managementCase management:overriding objectiveCase managementCase management:overriding objectiveCase managementCase management:overriding objectiveCase management:duty of courtCase managementCase management:overriding objectiveCase managementCase management:overriding objectiveCase management(reproduced in full in appendix B):r1.3Case management:powers of courtCase managementDirections hearing:powers of courtCase management:powers of courtCase management:directions hearingsCase management:directionsCase managementCase management:powers of courtCase management:authorised court officersCase managementCase management:initialCase managementCase management:initialCase managementCase management:initialCase managementCase management:initialCase management(reproduced in full in appendix A):s1(5)Personal welfare pathway:case managementCase Management PilotCase management:personal welfare pathwayCase managementApplications in health and welfare cases:Case Management PilotPersonal welfare pathway:case managementCase Management PilotCase management:personal welfare pathwayCase managementApplications in health and welfare cases:Case Management PilotCase Management PilotCase management:applications during proceedingsCase managementApplications in health and welfare cases:Case Management PilotCase Management PilotCase management:applications during proceedingsCase managementApplications in health and welfare cases:Case Management PilotCase Management PilotCase management:applications during proceedingsCase managementApplications in health and welfare cases:Case Management PilotCase Management PilotCase management:applications during proceedingsCase managementApplications in health and welfare cases:Case Management PilotCase Management PilotCase management:applications during proceedingsCase managementApplications in health and welfare cases:Case Management PilotPersonal welfare pathway:interim hearingsInterim hearingsCase Management PilotCase management:interim hearingsCase managementApplications in health and welfare cases:Case Management PilotPersonal welfare pathway:interim hearingsInterim hearingsCase Management PilotCase management:interim hearingsCase managementApplications in health and welfare cases:Case Management PilotPersonal welfare pathway:interim hearingsInterim hearingsCase Management PilotCase management:interim hearingsCase managementApplications in health and welfare cases:Case Management Pilot
The overriding objective
10.7Pilot Part 1 of the COPR has significantly strengthened the duties upon the court and the parties (and their legal representatives) to secure the overriding objective of enabling the court to deal with a case justly. It has also introduced a new element to the overriding objective of enabling the court to deal with cases at proportionate cost.
10.8There are now specific duties to further the overriding objective upon the court, the parties, legal representatives and unrepresented litigants, each of which we examine briefly in turn.
10.9The
court has a duty under COPR Pr1.3 actively to manage cases at all times, and in particular at certain key points such as the referral of the case file to a judge, at every hearing, and at all stages of a final hearing.
1COPR Pr1.3(2). Key aspects of the duty include:
•ensuring that the appropriate judge is allocated to the case and judicial continuity so far as practicable;
•avoiding delay and keeping costs down;
•encouraging the parties to co-operate with each other in the conduct of the proceedings;
•identifying at an early stage the issues and who should be a party to the proceedings;
•deciding promptly which issues need a full investigation and hearing and which do not, and the procedure to be followed in the case;
•deciding the order in which issues are to be resolved;
•encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate;
•fixing timetables or otherwise controlling the progress of the case;
•considering whether the likely benefits of taking a particular step justify the cost of taking it;
•dealing with as many aspects of the case as the court can on the same occasion;
•dealing with the case without the parties needing to attend at court;
•making use of technology; and
•giving directions to ensure that the case proceeds quickly and efficiently.
10.10The
parties have a duty to help the court further the overriding objective,
2COPR Pr1.4. a particularly important aspect of which is the requirement actively to ask the court to take steps to manage a case if it appears that an order or direction of the court appears not to deal with an issue, or a new circumstance, issue or dispute arises of which the court is unaware.
3COPR Pr1.4(2)(a). It is important to note that the court can take into account a failure without reasonable excuse to comply with the duty imposed by COPR Pr1.4 when deciding whether or not to depart from the general rules as to costs (see further chapter 16).
10.11
Legal representatives have their own specific duty (newly imposed by the Case Management Pilot) to help the court further the overriding objective.
4COPR Pr1.5. This does not override their duty to their clients, but does emphasise the extent to which they have obligations to the court as to how they conduct the proceedings.
5See also in this regard Farooqi and others v R [2013] EWCA Crim 1649 para 108 and also para 15.32.The powers of the court
10.12To enable it to further the overriding objective, the court is given general powers of case management by COPR Pr3.1 which details a wide-ranging suite of tools that judges can deploy, tools which (unsurprisingly) match closely the obligations imposed by COPR r1.3. Judges are given added flexibility by COPR Pr3.6, which provides that, in addition to its general powers and those listed in COPR Pr3.1, the court may dispense with the requirement of any rule. COPR Pr3.7 then provides the court with specific powers to make directions.
10.13The powers of a court at a directions hearing are therefore very wide. They extend as far as determining a case summarily upon its own motion, but that jurisdiction ‘must be exercised appropriately and with a modicum of restraint’:
KD and LD v Havering LBC,
6[2009] COPLR Con Vol 770 at para 28 per HHJ Horowitz QC, (2009) 12 CCLR 671. in which an appeal was allowed where the district judge brought proceedings to an end summarily before a best interests report (which the judge had previously directed be prepared) was filed.
10.14Authorised officers of the court may exercise certain case management powers in (broadly) non-contentious applications relating to property and affairs.
7COPR r7A. Authorised court officers may not conduct a hearing, and must refer to a judge any application or any question arising in any application which is contentious or which, in the opinion of the officer:
•is complex;
•requires a hearing; or
•for any other reason ought to be considered by a judge.
8PD 3A para 2.2. As this chapter is for the most part concerned with case management hearings, the powers of authorised officers are not addressed further here.
Initial case management
10.15Judges will make a significant number of initial directions upon consideration of the papers (and, where the grant of permission is required, at the same time as granting permission).
9The express power to do so is contained in COPR Pr3.7(1)(a). For cases on the personal welfare pathway, the Case Management Pilot specifically provides for judges to make a number of important decisions on the papers at the point of issues, including:
•gatekeeping (ie allocating the case to the right level of judge);
•listing for a case management conference within 28 days, unless the matter is urgent, in which case consideration must be given as to whether it is a case which should be allocated to a Tier 3
10See para 18.11 in relation to the tiering of judges in the Court of Protection. (ie a High Court or equivalent) judge;
•considering whether it is necessary that P be joined as a party (as to which see further chapter 15 below);
•considering whether an advocates meeting is required before the case management hearing and ordering such a meeting if appropriate; and
•ordering the preparation of a core bundle (not usually to exceed 150 pages) for the case management conference.
11Case Management Pilot PD para 4.5(1). 10.16For cases on the property and affairs pathway, the judge will list the case for a Dispute Resolution Hearing (see further chapter 18 below), or transfer the case to the most appropriate regional court outside the Central Office and Registry for listing of the Dispute Resolution Hearing and future case management.
12Case Management Pilot PD para 5.3(2). The judge will also order the respondent(s) to file a summary of the reasons for opposing the application or for seeking a different order if the reasons are not clear from the COP5 form submitted.
13Case Management Pilot PD para 5.3(2). Where the matter is urgent, the judge may either list for an urgent Dispute Resolution Hearing, or list an interim hearing to decide the urgent matter(s) in the case.
14Case Management Pilot PD para 5.6(2).10.17In mixed cases, the judge will on the papers either allocate it to a specific pathway, and give directions accordingly, or give directions as to which elements of each pathway are to apply and the procedure that the case will follow.
15Case Management Pilot PD para 6.1(3).10.18Anyone affected by an order made without a hearing has an automatic right to seek review of such orders by virtue of COPR r89 (see paras 18.3–18.8), but such review will inevitably add delay and expense. So as to avoid unnecessary delay, it is therefore important when making an application to ensure that it is clear on the face either:
•any of the ‘standard’ directions are inapplicable; or
•any unusual directions are required at the outset.
Case management on the personal welfare pathway
10.19An important innovation under the Case Management Pilot is that the court must list a case management hearing within 28 days (unless the matter is urgent, as to which see further para 10.65 below).
16Case Management Pilot PD para 4.4(1)(b). The Case Management Pilot PD then specifies in some detail what the court is expected to do at that Case Management Pilot.
17Case Management Pilot PD para 4.5. The most important tasks for the judge include:
•to decide – and record – which issues are in dispute, what has been agreed between the parties, and what issues are not to be the subject of adjudication.
18Case Management Pilot PD para 4.5(a)–(e). The President of the Court of Protection, Sir James Munby, has called for a ‘culture change’ in the Court of Protection
19Re MN [2015] EWCA Civ 411, [2016] Fam 87, (2015) 18 CCLR 521. and it is likely that judges will be under significant pressure to be much more robust about only allowing the key issues in any case to go forward for determination. Further, judges are going to be astute to the fact that a ‘common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected … the requirement in s1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests” calls for a sensible decision, not the pursuit of perfection.’
20A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1 at para 14. To take a practical example: if the application is for a decision that an adult with learning disabilities should no longer live at the family home but in a residential placement, the key issues for the court will be the ‘macro’ issues of (1) the adult’s future residence; and (2) (likely) whether they should have contact with their family. The judge will not be expected to wish to list for determination the ‘micro’ elements of the day to day care arrangements for the adult at the placement;
•to allocate a judge to the case, judicial continuity being recognised as one of the key drivers to ensuring that cases are resolved proportionately;
•decide how P is to participate in the proceedings (see further chapter 11);
•consider the evidence required, and in particular, whether a section 49 report or a COPR Pr1.2 representative (see para 11.7) could achieve a better result than an expert. (As to evidence see chapter 12); and
•fix a date for the final management hearing and set a target date for the final hearing (or a trial window).
10.20The personal welfare pathway also provides that there should be a final management hearing at which the court can decide whether the case can be resolved, and, if not, to give directions for the proper preparation of the final hearing.
21Case Management Pilot PD para 4.6(1). Importantly, at least five days before the final management hearing, the Case Management Pilot expects that a meeting will take place between the advocates and (so far as practicable) any unrepresented parties with the purpose of resolving or narrowing the issues to be decided at the final management hearing.
22Case Management Pilot PD para 4.6(2). Unless otherwise directed, a further advocates’ meeting is then to be held no less than five days before the final hearing.
23Case Management Pilot PD para 4.7(1). Advocates’ meetings are discussed in more detail at para 10.45 below.
Applications during proceedings
10.21Even within the much tighter structure envisaged by the Case Management Pilot, a party may well need to make an application during the proceedings either for additional directions, or for interim relief, most usually by way of declarations or decisions relating to P (interim relief is considered further at paras 10.58 onwards below). Not all applications will need to be determined at a hearing, many can be made on the papers (often by consent).
10.22The procedure for making an application within proceedings is set out in COPR Part 10, as well as in PD 10A. Part 10 of the Rules also covers the position in respect of urgent applications (as to which, see further paras 10.65 onwards below). In short, when making an application, it is necessary to file an application notice (on a form COP9)
24COPR r78(1). setting out the order or direction the applicant seeks and the grounds on which it is sought.
25COPR r79. COPR r79(c) refers to information being required by a practice direction; PD 10A provides that certain basic information (for instance, the case number) is required, but does not materially add to the requirements. Where an unusually long or complex order is sought, an electronic copy should be provided; PD 10 provides that this should be done on a disk
26PD 10A para 4. but increasingly the practice is for email to be used. The applicant should also file the evidence upon which they rely unless it is already before the court.
27COPR r78(2). The court has the power to dispense with the need to file an application notice (for instance, by treating a letter sent during the currency of proceedings as if it were an application).
28COPR r78(5).10.23As a general rule, it is necessary for the applicant to serve a copy of the application notice on anyone named as a respondent in the application notice, every party to the proceedings and on any other person directed by the court, as soon as practicable and in any event within 21 days of service.
29COPR r80(1). The application notice must be accompanied by a copy of the evidence filed in support,
30COPR r80(2). and the applicant must file a COP20 certificate of service within seven days of the date on which documents were served;
31COPR r80(3). where a person has already been served with evidence, the applicant does not need to file a further copy of such evidence but should instead give notice of the evidence upon which they intend to rely.
32COPR r80(4). The applicant can dispense with service only where there is exceptional urgency, where the overriding objective is best served by so doing, by consent of all the parties, with the permission of the court, or where a rule or other practice direction permits (the material practice direction here being PD 10B, discussed further at paras 10.60 onwards below).
33PD 10A para 9. Where the applicant has dispensed with service, the court can nonetheless still direct that service should be effected and specify who should be served with or notified of the application.
34PD 10A para 11.10.24Wherever possible, an application should be made so as that it can be considered at a hearing which is already listed.
35PD 10A para 15. If a hearing date has already been fixed and a party wishes to make an application at that hearing but does not have sufficient time in which to file an application notice, PD 10A provides that the applicant should inform the court (in writing if possible) and, if possible, the other parties as soon as they can of the nature of the application and the reason for it, and should then make the application orally at the hearing.
36PD 10A para 16.10.25Parties should also be aware of the power under COPR Pr3.7(4)
37COPR r85(4) outside the Case Management Pilot. to vary the time specified for a person to ‘do any act’ either by the rules or the practice directions or the court, by the written agreement of the parties. This cannot be used to vary the date of a final hearing or to vary the period within which a final hearing can take place. This will always require an application to the court.
38COPR Pr3.7(5)/COPR r85(5). Nor can it be used if the outcome of the variation would require variation of the date of the final hearing or the period in which the final hearing takes place.
39COPR Pr3.7(6). However if – for example – it becomes clear that the timetable set by the court for the filing of evidence is unlikely to be met, and the parties agreed to vary it, a consent order recording that agreement pursuant to COPR Pr3.7(4)
40COPR r85(6) outside the Case Management Pilot. could be filed at court, thus avoiding the need for an application.
Interim hearings: general provisions
10.26However they have been listed, interim hearings will usually be listed for between 30 minutes and one hour, and it is very common for a direction to be made that parties are to attend one hour before for purposes of discussions. As set out further below, such discussions can be immensely productive, and every effort should be made to attend in good time for such discussions. In the case of final management hearings on the personal welfare pathway, this requirement has been strengthened by the introduction of mandatory advocates’ hearings in advance of the hearing.
41Case Management Pilot PD para 4.6(2).10.27Interim hearings can also take place by telephone or video-link.
42COPR r25(2)(d). See also PD 10A paras 18–21 in respect of applications made within proceedings. This can save time and expense in terms of travel, but frequently at the cost of additional expense before and after the hearing in terms of seeking to agree an order to put to the judge or to agree the terms of an order reflecting the directions made by the judge at the hearing. In anything other than a straightforward interim hearing, therefore, careful consideration needs to be given (both by the representatives and the court) to whether the cause of effective case management is not better served by personal attendance.
10.28Interim hearings in serious medical treatment cases will be held in public (see further chapter 22), as will any interim hearing on a case falling within the Transparency Pilot (as to which, see further chapter 13).