ISSUES IN CASE MANAGEMENT. The Case Management Conference. Commercial Court CPD and CLE at Monash 25 February 2010.

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1 ISSUES IN CASE MANAGEMENT The Case Management Conference Commercial Court CPD and CLE at Monash 25 February 2010 Jennifer Davies 1 The overriding objective of case management, and of the changes introduced with the Commercial Court, is that each case requires individual treatment taking into account the parties, the nature of the dispute, the resources available and the need for disputes to come to trial promptly but sufficiently prepared. Effective case management therefore requires all involved in the process of management to turn their respective minds to the individual needs of each case to assist the judge in deciding how it should be managed. 2 The focus of the case management conference ( CMC ) is case management, as the name identifies. At the CMC, the issues in the case and the steps needed to prepare the case for trial will be discussed and the judge will set a pre-trial timetable with directions tailored to the case. The CMC is not another directions hearing and is not a matter of mere formality. A successful CMC is the key to effective case management, as the outcome of the CMC will provide the template for the interlocutory steps and conduct of the trial. Importantly, a properly prepared for, and properly conducted, CMC should be extremely valuable in the efficient resolution of the litigation, whether by aiding settlement without adjudication or facilitating focused preparation for, and conduct of, the trial. The processes for the conduct of a CMC set out in Part 7 of Practice Note No. 1 of 2010 are designed to make the CMC a useful technique for achieving those outcomes. Those processes are: (a) The drafting of a case memorandum; (b) The provision of a list of issues; (c) The preparation of a case management bundle; and 1 Judge in charge of List E and List F in the Commercial Court, Supreme Court of Victoria. 2 Justice Pagone, The Role of the Modern Commercial Court, Supreme Court Commercial Law Conference 12 November

2 (d) The attendance at the CMC for each party of the lead practitioner who is expected to conduct the case at trial. (a) Case Memorandum The function of the case memorandum is to provide the judge with an overview of the dispute to assist the judge in understanding the nature of the dispute and the issues that may arise in the dispute. My experience is that a well drawn case memorandum which fairly describes the dispute can be also assist the parties in their appreciation of the case that they are required to meet and, sometimes, of the need for re-pleading in order to reflect the case that each party seeks to assert. Pleadings, although essential for articulating the cause of action and nature of the defence, often do not propound for the other party a meaningful or sufficient recitation of a party s case. The memorandum should be pithy but contain sufficient detail of the dispute to give fair description of what the case is about. (b) List of Issues The list of issues is the most important document in the CMC material, as it will provide the template for the future conduct of the case. The list will inform the court and each of the parties of the matters of fact and law that the Court must address in order to decide the case and where there is common ground between the parties on those matters so that unnecessary time and expense related to uncontentious matter can be avoided. The list of issues may need to be refined or revised as the case progresses. Although the issues will be defined by reference to the pleadings, the content of this document should not be a mere repetition of the pleadings but contain an outline of those matters which must be proven and the structure of the legal propositions to be advanced. The outline should also identify agreed facts and matters of law. The purpose of the list of issues is set out in paragraph 7.10 of Practice Note No. 1 of 2010: 2

3 The purpose of the list of issues is not to supplant or override the pleadings but, rather, to identify precisely what issues are in dispute having regard to the pleadings. It is expected that the list of issues will (subject to the pleadings) form the basis of the further procedural steps to be undertaken in the expeditious management of the proceeding. At the CMC, the judge will discuss the appropriate management of the case by reference to the list of issues: it will be used as the structure for the case, for defining the scope of discovery, the factual and expert evidence required to be adduced by a party, other interlocutory steps that may need to be taken as well as informing the parties and the Court of the presentation for the parties submissions, written and oral. (c) Case Management Bundle The case management information sheet in the case management bundle informs the court and the parties about the steps that the parties consider necessary to prepare the case for trial, including plans for ADR or an explanation as to why ADR would not be appropriate. (d) Attendance of the Lead Practitioners The shift from a practitioner led case management to a judge managed case brings with it the consequence that a lot more work will need to be done up front on preparation for trial and resolution of the dispute. That up front work carries with it significant cost implications and resources, including the court s time because the judge must set aside time to read the material. For the CMC process to work, it is essential that it be attended by the legal practitioners who are expected to have the actual conduct of the case at trial. It is a requirement that leading counsel for each party who will have the conduct of the proceeding at trial attend at the CMC. 3 As Justice Pagone stated in his paper on the role of the modern Commercial Court: A consequence of this requirement is to bring forward the time of critical evaluation of a dispute by the people who are expected to conduct the trial from a point closer to the trial date to an earlier point in the 3 Paragraph 7.2 of Practice Note No. 1 of

4 preparation of the case for trial. A consequence of the CMC should be that those who have the carriage of a case at trial will focus upon the case as a whole at an earlier point in its journey to trial than may have been the practice in the past. That, in my experience to date, has had tangible benefits for litigants. In some cases it has clarified the position of the parties and wholly removed unnecessary disputes which had found expression in increasingly incendiary and obdurate correspondence. In some cases it identified amendments necessary to be made to the pleadings to reflect more clearly the dispute between the parties. In some cases it clarified for lead counsel the instructions which may previously have been given at a point in time when the instructions may not have been as clear or as precise as they subsequently became. In each case the CMC has ensured that the future management of the case occurred with as precise as possible a focus upon what the individual case needed The success of CMCs, however, depend fundamentally upon the person who is expected to be in charge of the proceeding at the trial for each party genuinely turning his or her mind to the needs of the case sooner, rather than later. 4 The full text of the paper can be found on the Commercial Court website, 5 as can Practice Note No. 1 of Part 7 which deals with the case management conference is annexed. 4 Pagone, above n 2, pp < 6 < 4

5 Version /12/ CASE MANAGEMENT CONFERENCE 7.1. The Court may order a Case Management Conference at any time A conference is not merely another directions hearing. The leading counsel for each party who will have the conduct of the proceeding at trial is required to attend The purpose of a conference is: to identify, define and refine the issues requiring judicial resolution; to determine the interlocutory steps necessary for the preparation of a proceeding; and to determine how the trial might best be conducted. Pre-conference arrangements 7.4. Within two weeks after the close of pleadings, the solicitors for the plaintiff will provide the List Judge with the Case Management Bundle Following delivery of the Case Management Bundle, the associate to the List Judge will arrange a convenient date for the conference. Case Management Bundle 7.6. A Case Management Bundle shall be prepared by the solicitors for the plaintiff for the purpose of the conference and must contain: all pleadings; the Case Memorandum; the draft list of issues; the completed Case Management Information Sheets; the principal orders in the proceeding; and any other document which a party may consider necessary and relevant to the conference. 8 See Schedule 2 below. 11

6 Version /12/2009 Case Memorandum 7.7. The solicitors for the plaintiff shall be responsible for agreeing, producing and filing an agreed Case Memorandum for the use of the List Judge at the conference. The Case Memorandum must contain: a short and uncontroversial description of what the proceeding is about; and a very short and uncontroversial summary of the material procedural history of the proceeding The failure of the parties to agree a Case Memorandum may be taken into account by the Court when dealing with the costs of the conference. Draft list of Issues 7.9. The practitioners will produce an agreed draft list of the important issues in the proceeding The purpose of the list of issues is not to supplant or override the pleadings but, rather, to identify precisely what issues are in dispute having regard to the pleadings. It is expected that the list of issues will (subject to the pleadings) form the basis of the further procedural steps to be undertaken in the expeditious management of the proceeding The draft list of issues should include issues both of fact and of law A separate section of the document should list those matters in which there is common ground between the parties The draft list of issues may be settled at the conference in consultation with the List Judge. Case Management Information Sheet All parties required to attend a conference must have completed a Case Management Information Sheet which is to be included within the Case Management Bundle. The standard form of Case Management Information Sheet is Schedule 2 to this Practice Note. Pre-trial timetable and directions At the conference, directions may be made in relation to the following matters: a date for trial; 12

7 Version /12/ mediation or alternative dispute resolution procedures; the manner in which evidence will be given; the preparation of a statement of agreed facts; the making of admissions, whether by notice to admit or otherwise; the time for preparation of any witness statements and statements of the substance of the evidence proposed to be given by a witness; the preparation of any expert reports and the manner in which evidence will be given by experts; discovery including any limitation upon its scope, timing, inspection, copying and the resolution of discovery disputes; the preparation of a court book; notice of objection to evidence; preparation of a chronology; preparation of opening submissions; a statement of the issues for trial; the separate trial of a preliminary question; the date and time of any further directions hearing; what, if any, applications should be heard and determined by an Associate Judge; any special orders in relation to evidence to be given by video link; return of any subpoenas; the determination of any other interlocutory disputes such as security for costs, provision of particulars and disputes in relation to the production and inspection of documents. 11 See paragraph 14.3 below See Chapter 10. See Chapter

8 Version /12/ The pre-trial timetable may also include the fixing of a progress review date by which each of the parties must send to the List Judge a statement indicating: whether that party has complied with the pre-trial timetable in all respects; in what respect, if any, that party has not complied with the pre-trial timetable; whether that party will be ready for trial commencing on the fixed date; and if that party is not ready for trial on the fixed date, a statement of why that is so Not later than three weeks before the date fixed for trial, each party must send to the associate to the List Judge (with a copy to all other parties) a completed Pre- Trial Checklist confirming the final details for trial in the form attached as Schedule 3. 14