Part 26

 

Case Management - The Court's Powers

 

Contents of this Part

The court's general powers of management Rule 26.1

Sanctions Rule 26.2

The court's powers in cases of non-compliance

with rules or orders Rule 26.3

Relief from sanctions Rule 26.4

Court's general power to strike out a statement of case Rule 26.5

General power of the court to rectify matters where

there has been a procedural error Rule 26.6

 

 

The court's general powers of management

26.1 (1) The court may -

    1. transfer the whole or any part of any proceedings from one registry to another;
    2. transfer proceedings to the Family or Small Claims Division;
    3. consolidate proceedings;
    4. extend or shorten the time for compliance with any rule, practice direction or order or direction of the court;
    5. adjourn or bring forward a hearing to a specific date;
    6. stay the whole or part of any proceedings generally or until a specified date or event;
    7. decide the order in which issues are to be tried;
    8. direct a separate trial of any issue;
    9. try two or more cases on the same occasion;
    10. direct that part of any proceedings (such as a counterclaim or other ancillary claim) be dealt with as separate proceedings;
    11. dismiss or give judgment on a claim after a decision on a preliminary issue;
    12. exclude an issue from determination if it can do substantive justice between the parties on the other issues and determining it would therefore serve no worthwhile purpose;
    13. require the maker of an affidavit to attend for cross examination;
    14. require any party or a party's attorney to attend the Court;
    15. deal with a matter without the attendance of any parties;
    16. hold a hearing by telephone or use any other method of direct oral communication;
    17. instead of holding an oral hearing deal with a matter on written representations submitted by the parties;
    18. direct that any evidence be given in written form;
    19. where there is a substantial inequality in the financial position of each party, order any party having the greater financial resources who applies for any order, to pay the other party's costs of complying with the order in any event;

(t) where two or more parties to proceedings are represented by the same attorney, the Court may require any of them to be separately represented.

(u) where two parties are represented by the same attorney,

(i) direct that they be separately represented; and

(ii) if necessary, adjourn any hearing to a fixed date

to enable separate representation to be arranged;

(v) give the conduct of proceedings to any person it thinks

fit and make any appropriate consequential order about

costs

(w) take any other step give any other direction or make any

other order for the purpose of managing the case and

furthering the overriding objective.
    1. When the court makes an order or gives a direction, it may make the order or direction subject to conditions.
    2. The conditions which the court may impose include -
    1. a condition requiring a party to give security; and
    2. a condition requiring a party to give an undertaking; and
    3. a condition requiring the payment of money into court or as the court may direct; and
    4. a condition requiring a party to pay all or part of the costs of the proceedings; and
    5. a condition that a party shall permit entry to property owned or occupied by him to another party or someone acting on behalf of another party.
    1. In considering whether to make an order, the court may take into account whether a party is prepared to give an undertaking.

(5) The list of powers in this rule is in addition to any other powers given to the Court by an other rule, practice direction or enactment.

 

Sanctions - striking out statement of case

26.2 (1) The court may -

    1. strike out a statement of case or part of a statement of case if it appears to the court -
    1. that there has been a failure to comply with a rule or practice direction or with an order or direction given by the court in the proceedings; or
    2. that the statement of case or the part to be struck out is an abuse of the process of the court; or
    3. that the statement of case or the part to be struck out discloses no grounds for bringing or defending a claim; or
    4. that the statement of case or the part to be struck out is prolix or does not comply with the requirements of Parts 8 or 10.

(2) Where

(a) the court has struck out a claimant's statement of case;

(b) the claimant is ordered to pay costs to the defendant; and

(c) before the claimant pays those costs, he starts a similar claim against the same defendant,

the Court may on the application of the defendant stay the

subsequent claim until the costs of the first claim have been

paid.

 

Court's general power to strike out a statement of case

26.3 (1) Where a party has failed to comply with any of these rules or

any court order in respect of which no sanction for non-

compliance has been imposed the other party may apply to the court for an 'unless order'.

(2) Such an application may be made without notice but must -

(a) identify the rule or order which has not been

complied with and the nature of the breach; and

(b) contain a certificate that the other party is in default.

(3) Any such application shall be referred immediately to a

[master] who may -
    1. grant the application; or
    2. seek the views of the other party; or
    3. direct that an appointment be fixed to consider the application and that notice of the date time and place for such appointment be given to the other party.

(4) The general rule is that the respondent should be ordered to

pay the costs of such an application.

(5) If the defaulting party shall fail to comply with the terms

of any 'unless order' made by the court his statement of case

shall be struck out and he shall pay the other party's costs of

the claim such costs to be assessed if not agreed.

(Rules 12.14 and 14 deal with judgment after failure to comply with an unless order)

(6) Rules 26.4 and 26.6 shall not apply.

 

Judgment without a trial after dismissal or striking out

26.4 (1) This rule applies where the court makes an order which

includes a term that the claim or defence of a party, or part of

a claim or defence, shall be struck out if the party does not

comply with the order (an "unless order").
    1. If the party does not comply with the order, any other party may ask for judgment to be entered and for costs.
    2. A party may obtain judgment under this rule by filing a request for judgment.
    3. The request must certify that the right to enter judgment has arisen because the court's order was not complied with and state the facts which entitle him to judgment
    4. Judgment under this rule shall be such judgment as the party by whom the request is filed is entitled to.
    5. Where a decision of the court is necessary in order to decide the terms of the judgment the party making the request must apply for directions.

 

Setting aside judgment entered after dismissal or striking out

26.5 (1) A party against whom the court has entered judgment under

rule 26.3 may apply to the court to set it aside.
    1. If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside judgment.
    2. If the application to set aside is made for any other reason, rule 26 .4 (relief from sanctions) shall apply.

 

The Court's powers in cases of failure to comply with rules orders or directions

26.6 (1) Where the court makes an order or gives directions the court

shall whenever practicable also specify the consequences of

failure to comply.

(2) Where a party has failed to comply with any of these rules a

direction or any court order, any sanction for non-compliance

imposed by the rule or the court order has effect unless the party

in default applies for and obtains relief from the sanction and

Rule 26.x shall not apply.

(Rule 26.6 deals with the circumstances in which the Court may grant relief from a sanction)

Relief from sanctions

26.7 (1) An application for relief from any sanction imposed for a failure

to comply with any rule, court order or direction must be made

promptly.
    1. An application for relief must be supported by evidence.
    2. The court may grant relief only if it is satisfied that -
    1. the failure to comply was not intentional; and
    2. there is a good explanation for the breach; and
    3. the party in default has generally complied with all other relevant rules practice directions orders and directions..
    1. In considering whether to grant relief, the court shall

have regard to -

(a) the interests of the administration of justice; and
    1. whether the failure to comply was due to the party or his attorney; and
    2. whether the failure to comply has been or can be remedied within a reasonable time; and
    3. whether the trial date or any likely trial date can still be met if relief is granted.
    1. The court may not order the respondent to pay the applicant's costs in relation to any application for relief unless exceptional circumstances are shown.

 

 

General power of the court to rectify matters where there has been an error of procedure

26.8 (1) This rule applies only where the consequence of non -

compliance with a rule, practice direction or court order has

not been specified by any rule, practice direction or court order.
    1. An error or procedure or failure to comply with a rule, practice direction or court order does not invalidate any step taken in the proceedings, unless the court so orders.
    2. Where there has been an error of procedure or failure to comply with a rule, practice direction, court order or direction, the court may make an order to put matters right.
    3. The court may make such an order on or without an application by a party.