Howard Crossman

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A quick guide to the initial Case Management Conference (CMC)

Solutions / 29 March 2018

What is a CMC?
A CMC is an opportunity for a court to understand the issues in dispute, manage the case and give directions before trial. It will try and identify the real issues between the parties and whether they can be narrowed before trial. The prospects of settlement and alternative dispute resolution will also be discussed. The court may hear applications (for example, an application for a preliminary issue hearing, or an order that a party responds to a request for further information). It may decide to make orders itself.  It will also review the parties cost estimates for the litigation and whether these are in proportion to what is in dispute (see further below).

Why is Compliance important?

It is important that both parties comply with orders given at the CMC or the court may impose sanctions.  The courts are now taking a much stricter view of any failure to comply with court orders and deadlines and if a sanction is imposed, it may be very difficult to persuade a court to grant relief from the effect of that sanction.  It is also much harder to obtain time extensions than previously.

Attendance at the CMC
Normally counsel will attend the CMC, together with the legal representative who know about the case and has client authority to deal with any issues that may arise.

Preparation for the CMC
The claimant will prepare a case management bundle for the CMC containing all relevant documents and provide copies to all parties, including the court.  The claimant will also produce a short statement of the facts of the case to give the judge a general understanding of what the case is about. Both parties prepare disclosure reports which briefly describe the documents which exist, that are or may be relevant to the matters in issue. They also say where and with whom the documents are located, how many electronic documents are stored and estimate the costs that could be involved in giving standard disclosure.  The disclosure report will be filed in court and a copy served on the other side at least 14 days before the CMC.

The parties also have to prepare and file a costs budget, usually no later than 21 days before the CMC.  The costs budget must be prepared using a standard form (Precedent H).  It must contain an estimate of the reasonable and proportionate costs.  Assumptions on which it is based must be stated and contingencies also have to be included.  If the court makes a costs management order based on the parties’ costs budgets, at the end of the litigation, the costs of the successful party will be assessed in accordance with the approved budget.  The parties often discuss their respective costs budgets to see if there can be agreement and report on this using a standard form (Precedent R) no later than 7 days before the CMC.

Settlement
At the CMC, the court will consider what steps have been taken to try to settle the case with alternative dispute resolution (ADR) mechanisms, such as mediation and may make directions concerning the requirement to mediate.

The type of directions made at court
These relate to filing and service of any further information required to clarify the case, an order for disclosure of documents including consideration of E-disclosure, inspection of documents, exchange of witness statements, exchange of experts’ reports and meetings between experts to identify the issues in the proceedings, preparation by experts of a statement showing issues on which the experts agree and   disagree, whether there should be another CMC or review before trial, whether a trial date can be fixed, whether there should be a trial of a preliminary issue or split trials on liability and quantum and a costs management order relating to the parties’ costs budgets for the case.

Costs of the CMC
Normally the winning party at trial is awarded the costs of the CMC or the parties agree on the costs of the settlement.

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