A case of good management

District Judge John Frenkel completes his reflections on the civil justice reforms, 14 months after implementation

It is easy to be at cross purposes about names.

Under the Civil Procedure Rules (CPR) part 26 there can be an allocation hearing before the claim is allocated to a track.

The court may list a case management conference (CMC) under part 29.3 at any time after allocation, and it may fix a directions appointment under part 8 Practice Direction (PD)4 para 4.We shall call any appointment (including an allocation hearing) held at the start of the preparation period a CMC.Managing the multi-trackA CMC is necessary only when the claim is large or complicated or when the parties give a good reason for one - for example, an appointment will promote a settlement.

Unless a party acts in person, most multi-track claims can be managed on paper.No more than one-third of solicitors supply a proper case summary or a draft order to the court.

As a result is the district judge directs a CMC.PD29, which deals with the multi-track, should say a CMC is not a substitute for poor case management.

Always write a covering letter to describe the real issues in the claim and explain why the proposed directions are appropriate.

Do not try to squeeze all the information into the boxes in the allocation questionnaire.Checklistl When appropriate, ask for a CMC in the allocation questionnaire and give reasons along with a time estimate to include district judge's reading time and your dates to avoid.l Should the clients be present ? Yes, whenever this is practicable and likely to be useful.l Try to agree with the other parties a case summary statement (PD29 para 5.7), draft directions (PD29 para 5.6) and the trial window.Window testThe ability to agree on a trial window is the first case management test.l Should the trial be of one or more preliminary issues?l When are any expert witnesses available? Remember, at allocation stage the court is unlikely to decide whether expert evidence will be oral or by report so availability may not then matter.l Telephone the diary manager to confirm that your proposed trial window is open.Filing tonightBefore the CMC, do not forget to file:l The case summary and the draft directions.

Filing witness statements and experts' reports in the absence of a direction requiring them is not usually helpful because most district judges prefer to rely on the parties' analysis of the issues and their case management proposals.l The costs estimate.

This can be brief but it is important for the clients to be able to read the meter.

The estimate is an essential case management tool if there is, say, an application for further disclosure.Performance artThe key to successful case management is to consider litigation as a business of dispute resolution.

The change in the profession's approach to civil litigation has been remarkable.

With few exceptions, the pre-Woolf adversarial approach of procedure applications has been replaced by a co-operation that identifies the issues and creates a workable timetable to assemble and to disclose the evidence.These are some issues and outcomes of CMCs:l In disputes about, for example, the ownership of land or registered companies, a judgment that defines the parties' historical legal rights may not give the business outcome sought by both parties.

Alternative dispute resolution is the obvious route, and references have increased threefold in the past year.l Are some issues admitted? If the defendant admits liability, the court can enter judgment for an amount to be decided.

Causation may still be argued out: this is not inconsistent with the judgment Lunnun v Singh (1999), The Times, 19 July.l Former partners will usually agree to a declaration that their partnership is dissolved and the court give directions for the dissolution account.l If there is to be a trial of a preliminary issue, how should the order be worded? Positive wording reads: 'Limitation shall be tried as a preliminary issue.' Sometimes a negative form is better: 'All issues shall be tried except for the account.'l Should the preparation of the 'other issues' be stayed until the trial of the preliminary issue? The answer is yes if there is a real risk of the claimant losing, because both parties will save significant costs.

If it is probable that the claimant will win something the answer is no.

It is to deal with issues such as this that a person with information and authority must attend the hearing.l Should there be a second CMC? Sometimes one party does not have enough information to assess their opponent's case.

A second, dispute-resolving CMC may be useful.l Expect the district judge to ask to see any part 36 offers or payment notice.

The offers give the clearest indication of the nature of the real dispute.l Where will the claim be tried? Justice must be local.

What if the CMC is listed in court A, but all the witnesses live in the district of court B? Either the claim, and with it the CMC, must be transferred to court B, or you must ask court B's diary manager for a trial window.l High Court or County Court? Practice may vary but many county courts expect to try claims of up to 150,000 in the multi-track.

If the claim is to be tried in the High Court, expect the district judge to ask whether you consent to the release of the trial to a circuit judge authorised to sit in the High Court under section 9 of the Supreme Court Act 1981.Ordering the orderNote the terms of the order carefully.

Anticipate that the district judge may follow the RCJ practice and ask you to draw up the order.

The PD40 sets out the requirements.

The final form of the order may be directed to be agreed between the parties or approved by the court.'It's for you, judge'PD29 para 5.2 requires a legal representative familiar with the claim to attend on a multi-track CMC.

A solicitor who practices outside the court's district must either travel to the hearing or send a local agent or counsel.

A stand-in for the file manager who has not been personally involved in the conduct of case may be frustrating for everyone.

The stand-in may not have the information to answer the district judge's questions about the issues or to take decisions about expert evidence.A telephone conference saves cost.

You do not have to draw instructions or pay counsel or an agent.

The file manager is usually more helpful and effective than a local agent or counsel.

To arrange a conference call is simple.

You do not have to purchase any special equipment because those participating in the meeting use their normal phones or even their mobiles.

To set up a telephone conference, telephone the BT Legal Call Centre on 0800 028 4194, or use another comparable system.

The 'call out' system must be used.

Tell the operator the order in which to telephone the solicitors, or counsel and the district judge.

Confirm the necessary arrangements to the court and ask for the telephone conference to be highlighted in the cause list so that the judge is aware of the teleconference and can schedule his or her time.

Send a case summary to the court with a draft order to help the district judge understand the background to the claim and the application.

At the appointed time, the BT legal co-ordinator will telephone the solicitors, the other participators and the district judge.

One party may attend the hearing if the party who telephones agrees.The introduction of the conference call means we can have the whole case team at a case management conference on 24 hours' notice.

Fix the teleconference at the start of a list to avoid an overrun of an earlier hearing.

District Judge John Frenkel sits at the Bristol Civil Trial Centre and is consulting editor of Practical Civil Court Precedents