PRACTICE DIRECTION 5 CASE MANAGEMENT AND PAPERS FOR TRIAL
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Date first issued: 30 May 2016
This Practice Direction is to be read with, and subject to, the ADGM Court Procedure Rules 2016, save as otherwise provided for in this Practice Direction. Except as provided otherwise in this Practice Direction, terms have the meanings set out in those Rules. For the avoidance of doubt, this Practice Direction does not apply to a "small claim" (as that term is defined in Practice Direction 3).
A. CASE MANAGEMENT
5.1. The aim of case management is to further the overriding objective of the Rules: to ensure that the ADGM Courts are accessible, fair and efficient. To that end, case management is directed to identifying, as soon as reasonably practicable, the real issues in dispute between the parties and trying those issues fairly and expeditiously.
5.2. The Court will manage cases proportionately, having regard to the amounts at stake and the complexity of the issues.
5.3. In managing a case, the Court may make any order, give any direction or take any step it considers appropriate having regard to the nature of the claim, the circumstances of the case and the overriding objective.
5.4. The Court may, upon the request of a party or on its own initiative, convene a case management conference at any time during the proceedings to facilitate the effective management of the case. A case management conference will ordinarily be conducted by video or telephone conference as arranged by the Court. For the purposes of this Practice Direction, a case management conference shall be taken to include (as the context requires) the initial case management conference, a progress monitoring hearing, a pre-trial review or any similar hearing or arrangement.
5.5. The parties must endeavour to agree appropriate directions for the management of the proceedings, and in accordance with this Practice Direction to submit agreed directions or their respective proposals to the Court prior to any case management conference.
5.6. At any case management conference, the Court may:
(a) review the steps which the parties have taken in preparation of the case, and in particular their compliance with any directions that the Court may have given;
(b) decide and give directions about the steps which are to be taken to ensure the progress of the claim in accordance with the overriding objective;
(c) ensure, as far as it can, that all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded;
(d) discuss the issues in the case and the requirements of the case; and
(e) in the case of the initial case management conference, to fix a timetable for the conduct of the case, including if possible the appointment of trial dates or provisional trial dates, or, if that is not practicable, to fix as much of the pre-trial timetable as is possible.
5.7. The topics the Court will consider at a case management conference are likely to include:
(a) whether the parties have attempted to settle the dispute and/or would like a further opportunity to do so;
(b) whether the claimant has made clear the claim he is bringing, in particular the amount he is claiming, so that the other party can understand the case he has to meet (similar considerations will apply in relation to any counterclaim);
(c) whether any amendments are required to the claim, a statement of case or any other document;
(d) what disclosure of documents, if any, is necessary;
(e) what expert evidence, if any, is reasonably required and how and when that evidence should be obtained and disclosed;
(f) what factual evidence should be obtained and disclosed;
(g) whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues; and
(h) what, if any, pre-trial applications do the parties intend to bring and the impact that this is likely to have on the timetable.
5.8. Where a party has a legal representative, such representative must attend the case management conference, must be familiar with the case and must possess sufficient authority to deal with any issues that are likely to arise. That person should be someone who personally is involved in the conduct of the case, and who has authority to deal with any matter which may reasonably be expected to be dealt with at such hearing, including the fixing of the timetable, the identification of issues and matters of evidence. Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, a wasted costs order may be considered appropriate.1
1 Amended on 25 February 2019
5.9. Where a party wishes to obtain an order not routinely made at a case management conference, and believes that such application will be opposed, this application should be issued and served in time for it to be listed, and if possible heard, at the case management conference. If the time allowed for the case management conference is likely to be insufficient for the application to be heard, that applicant should inform the Court at once in order that a new date may be appointed.2
2 Amended on 25 February 2019
5.10. The parties will be required to provide the Court with an agreed list of issues that are to be litigated. In this respect, the parties are reminded that:
(a) a list of issues is not intended to supersede the parties' statements of case;
(b) a list of issues should identify the issues neutrally in a way that will best reflect the expected structure of the case. It is a case management tool, not an opportunity for advocacy; and
(c) as a case progresses, the list of issues may be susceptible to change.
5.11. Wherever relevant, the parties are to consult and co-operate with the aim of providing the documents required to be submitted to the Court within the time limits prescribed.
5.12. If any party fails to comply with this Practice Direction or any order or direction made in connection with this Practice Direction, the Court may:
(a) impose such sanction as it sees fit, which may include the making of an adverse costs order against the defaulting party;
(b) proceed with or adjourn any scheduled case management conference;
(c) proceed to make such orders as it considers appropriate for the future conduct of the proceedings having regard to the overriding objective; and/or
(d) in appropriate circumstances, strike out any claim or defence.
Notice, Directions Questionnaire and Proposed Directions
5.13. In accordance with Rules 77(1) and (2), and if the circumstances of the case so require, a Court officer will issue each party with a notice which will specify any matter to be complied with by the date specified in the notice (the "specified date") and require the parties to file a completed directions questionnaire, serve copies on all other parties and file proposed directions by the specified date.
5.14. The directions questionnaire form is set out in Appendix A to this Practice Direction. A proposed directions guidance note which the parties are encouraged to consider when providing the Court with proposed directions is set out at Appendix B.
Case Management Conferences
5.15. The Court will convene an initial case management conference for all claims filed in the Civil and Employment Divisions within 14 days of the close of pleadings (which in normal course will be after the filing of a Reply), or as otherwise directed by the Court.
5.16. Unless otherwise provided for in the Court's notice fixing the date for the initial case management conference, not less than 4 days before that conference:
(a) each party must file and serve on all other parties completed copies of the directions questionnaire;
(b) the claimant is to file with the Court and provide to all other parties a copy of any proposed directions that are agreed;
(c) in the event that there is no agreement between the parties on the proposed directions, each party must file with the Court and serve on all other parties a copy of its proposed directions;
(d) the claimant is to file with the Court and provide to all other parties a copy of an agreed list of the significant issues in the case;
(e) in the event that there is no agreement between the parties as to the list of significant issues, each party must file with the Court and serve on all other parties a copy of its proposed list of issues; and
(f) any other documents set out in the notice.
5.17. At the initial case management conference, the parties' legal representatives (or any party appearing in person) should be in a position fully to inform the Court of the following:3
(a) the issues likely to arise in the proceedings;
(b) the directions which each party may seek, including any agreement reached between the parties in regard to those directions;
(c) whether it is proposed to file any application notices in respect of pre-trial issues and the nature of those pre-trial issues;
(d) the volume of material likely to comprise standard disclosure between the parties; and
(e) any other matter which the legal representatives may wish to bring to the Court's attention to achieve the efficient management of the case to trial.
3 Amended on 25 February 2019
5.18. At the initial case management conference:
(a) the Court will decide a timetable for the pre-trial steps necessary to be taken, which may include the holding of a further case management conference, a progress monitoring hearing and/or a pre-trial review;
(b) if and insofar as it is not possible to fix trial dates or provisional trial dates, the Court will endeavour to manage the case so as to fix such dates at the first available opportunity; and
(c) if there is no agreement between the parties as to the list of significant issues in the case, the Court itself may state the significant issues in the case and from time to time thereafter the Court may state or restate those issues as it sees fit.
5.19. Where appropriate, a progress monitoring date will be fixed at the initial case management conference; such date will normally be after the date fixed in the pre-trial timetable for the exchange of any witness statements and any expert reports.
5.20. At least 5 clear days before the progress monitoring date, the parties must file and serve a procedural compliance statement to inform the Court:
(a) whether, as at that date, they have complied with the pre-trial timetable, and if they have not, the respects in which they have not; and
(b) whether they will be ready for trial commencing on the trial dates or provisional trial dates fixed in the pre-trial timetable, and if they will not be ready, why they will not be ready.
5.21. The form of the procedural compliance statement is set out in Appendix C to this Practice Direction.
5.22. The Court may direct that a further case management conference be convened if, in its view, the information in the procedural compliance statement reasonably requires such action. The Court may make such orders and give such directions as it considers appropriate whether at a case management conference or at any time on its own initiative with the primary objective of preserving the trial dates or provisional trial dates.
5.23. In appropriate cases, the Court may decide to consolidate the progress monitoring of the case with the pre-trial review.
4 Amended on 25 February 2019
5.24. Subject to the following provisions, the pre-trial review normally will take place between 4 to 8 weeks before the date fixed for trial.
5.25. In all appropriate cases, no later than 5 clear days before the pre-trial review, or by the date specified by the Court:
(a) each party must file and serve on all other parties a completed copy of the pre-trial checklist in the form set out in Appendix D;
(b) the claimant is to file with the Court and provide to all other parties an agreed timetable for the trial providing for (as necessary) oral submissions, witnesses of fact and expert evidence; in the event the trial timetable is not agreed, any differences of view should be identified with clarity;
(c) in the event that there are any outstanding matters in relation to the trial requiring directions from the Court, the claimant is to file with the Court and provide to all other parties a copy of any proposed directions that are agreed; and
(d) in the event that there is no agreement between the parties on the proposed directions, each party must file with the Court, and serve on all other parties, a copy of its proposed directions.
5.26. Upon receipt of the required documents, the Court may, on the papers, approve, modify or set the trial timetable and give such other directions for the conduct of the trial as it considers appropriate. If, upon receipt of the required documents, the Court decides to hold a pre-trial review hearing or to cancel a pre-trial review hearing which previously has been fixed, it will notify the parties of its decision.
5.27. In any event, as soon as practicable after each party has filed a completed pre-trial check list or the Court has held a pre-trial review, the Court may
(a) set a timetable for the trial, unless a timetable has already been fixed or the Court considers that it would be inappropriate to do so; and/or
(b) confirm the date for trial.
5 Amended on 25 February 2019
5.28. If or when the Court sets a timetable for the taking of procedural steps in a case, the parties must comply with it.
5.29. If the parties agree that the timetable should be adjusted, they must file a written consent to the adjusted timetable using Form CFI 22.
5.30. Where a written consent is filed, the terms of such consent will be referred to a Judge who may direct the Registrar to enter, sign and seal an order in accordance with the terms of the consent.
5.31. If the parties cannot agree to make an adjustment which is sought by either party, and the adjustment sought will not affect or have a consequential impact on the dates fixed for a hearing or a trial, the party seeking the adjustment should file and serve a statement using Form CFI 36 setting out its justification for the adjustment it seeks. Unless otherwise directed by the Court, the other party or parties shall file and serve any response using Form CFI 36 within 4 days of within 4 days of receipt of such statement. The Court will ordinarily resolve that dispute on the papers.
5.32. If the parties cannot agree to make somean adjustment which is sought by either party, and the adjustment as sought will affect or have a consequential impact on the dates fixed for a hearing or a trial, the party who seekings the adjustment must make an application in accordance with Practice Direction 7 using Forms CFI 12, CFI 15 and CFI 37.
Hearing and trial dates
5.33. When the Court fixes the date for a hearing or a trial, it expects the application or the case to be ready to proceed on that day and at the appointed time.
B. PAPERS FOR TRIAL
Papers for trial
5.34. The Court will make directions, as appropriate, for the filing and serving of papers for the trial. Depending on the circumstances of the case and the nature of the issues in dispute, these papers may include an updated list of issues, a chronology of relevant events, a dramatis personae, an index of the hearing bundle and such other documents as the Court may direct. These papers should be prepared in neutral terms and the Court expects the parties to consult and agree on their contents so that agreed papers can be provided to the Court.
5.35. If it is not possible for the parties to reach agreement on any document or documents, this fact must be notified to the Court, which will resolve the issue upon hearing representations from the parties.
5.36. The Court may also make directions relating to the form of opening and closing submissions (whether written, oral, or both) as is appropriate for the case.
5.37. Where relevant, the papers to be used at the trial should be cross-referenced to relevant documents contained within the hearing bundle.
5.38. Unless otherwise directed:
(a) the hearing bundle shall be in electronic form and shall be prepared by the claimant based upon the index agreed with the other parties using the bundle made available on the ADGM eCourts Platform; and
(b) the documents in the hearing bundle shall be allocated into the following electronic folders: (i) pleadings (including application notices); (ii) orders; (iii) witness statements of fact (including exhibits); (iv) other relevant documents; (v) skeleton arguments and authorities.