Part 26 – Case Management –The Court’s Powers

Court’s general powers of management

26.1

1. The list of powers in this rule is in addition to any powers given to the court by any other rule, practice directions or any enactment.
2. Except where these rules provide otherwise, the court may –
   1. adjourn or bring forward a hearing to a specific date;
   2. consolidate proceedings;
   3. deal with a matter without the attendance of any of the parties;
   4. decide the order in which issues are to be tried;
   5. direct a separate trial of any issue;
   6. direct that any evidence be given in written form;
   7. direct that notice of any proceedings or application be given to any person;
   8. direct that part of any proceedings (such as a counterclaim or  other ancillary claim) be dealt with as separate proceedings;
   9. dismiss or give judgment on a claim after a decision on a prelimi­nary issue;
   10. exclude an issue from determination if the court can do substantive justice between the parties on the other issues and determines it would therefore serve no worthwhile purpose;
   11. extend or shorten the time for compliance with any rule, practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed;
   12. give the conduct of any matter to any person it thinks fit and make any appropriate consequential order about costs;
   13. hold a hearing and receive evidence by telephone or use any other method of direct oral communication;
   14. instead of holding an oral hearing deal with a matter on written representations submitted by the parties;
   15. require any party or a party’s legal practitioner to attend the court;
   16. require the maker of an affidavit or witness statement to attend for cross-examination;
   17. stay the whole or part of any proceedings generally or until a specified date or event;
   18. transfer proceedings to the Family Court or the District or Magis­trate’s Court;
   19. ransfer the whole or any part of any proceedings to another court office from the court office of one Member State, Territory or circuit;
   20. try two or more claims on the same occasion;
   21. where there is a substantial inequality in the proven financial position of each party, order any party having the greater finan­cial resources who applies for an order to pay the other party’s costs of complying with the order in any event;
   22. where two or more parties are represented by the same legal practitioner –
       1. direct that they be separately represented;
       2. if necessary, adjourn any hearing to a fixed date to enable separate representation to be arranged; and
       3. make any consequential order as to costs thrown away; and
   23. 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.
3. When the court makes an order or gives a direction, it may make the order or direction subject to conditions.
4. The conditions which the court may impose include a condition –
   1. requiring a party to give an undertaking;
   2. requiring a party to give security;
   3. requiring a party to pay all or part of the costs of the proceedings;
   4. requiring the payment of money into court or as the court may direct; and
   5. that a party permit entry to property owned or occupied by that party to another party or someone acting on behalf of another party.
5. In considering whether to make an order, the court may take into account whether a party is prepared to give an undertaking.
6. In special circumstances on the application of a party the court may dispense with compliance with any of these rules.

Court’s power to make orders of its own initiative

26.2

1. Except where a rule or other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
2. If the court proposes to make an order of its own initiative, it must give any party likely to be affected a reasonable opportunity to make representations.
3. The opportunity may be to make representations orally, in writing, telephonically or by any other means as the court considers reasonable.
4. If the court proposes to –
   1. make an order of its own initiative; and
   2. hold a hearing to decide whether to do so; the court office must give each party likely to be affected by the order at least 7 days’ notice of the date, time and place of the hearing.

Sanctions – striking out statement of case

26.3

1. In addition to any other power under these Rules, the court may strike out a statement of case or part of a statement of case if it appears to the court that –
   1. there has been a failure to comply with a rule, practice direction, order or direction given by the court in the proceedings
   2. the statement of case or the part to be struck out does not disclose any reasonable ground for bringing or defending a claim;
   3. the statement of case or the part to be struck out is an abuse of the process of the court or is likely to obstruct the just disposal of the proceedings; or
   4. the statement of case or the part to be struck out is prolix or does not comply with the requirements of Part 8 or 10.
2. If –
   1. the court has struck out a claimant’s statement of case;
   2. the claimant is ordered to pay costs to the defendant; and
   3. before those costs are paid, the claimant starts a similar claim against the same defendant based on substantially the same facts; 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 statement of case

26.4

1. If 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, any other party may apply to the court for an “unless order”.
2. Such an application may be made without notice but must be sup­ported by evidence on affidavit which –
   1. contains a certificate that the other party is in default;
   2. identifies the rule or order which has not been complied with; and
   3. states the nature of the breach.
3. The court office must refer any such application immediately to a judge, master or registrar who may –
   1. grant the application;
   2. direct that an appointment be fixed to consider the application and that the court office give to all parties notice of the date, time and place for such appointment; or
   3. seek the views of the other party.
4. If an appointment is fixed the court must give 7 days notice of the date, time and place of the appointment to all parties.
5. An “unless order” must identify the breach and require the party in default to remedy the default by a specified date.
6. The general rule is that the respondent should be ordered to pay the assessed costs of such an application.
7. If the defaulting party fails to comply with the terms of any “unless order” made by the court that party’s statement of case shall be struck out.
8. Rule 26.9 (general power of the court to rectify matters where there has been a procedural error) shall not apply
   • Rule 11.16 deals with applications to set aside any order made on an application made without notice.

Judgment without trial after striking out

26.5

1. This rule applies where the court makes an order which includes a term that the statement of case of a party be struck out if the party does not comply with the “unless order” by the specified date.
2. If the party against whom the order was made does not comply with the order, any other party may ask for judgment to be entered and for prescribed costs appropriate to the stage that the proceedings have reached.
3. A party may obtain judgment under this rule by filing a request for judgment.
4. The request must –
   1. certify that the right to enter judgment has arisen because the court’s order was not complied with;
   2. prove service of the “unless order”; and
   3. state the facts which entitle the party to judgment.
5. If the party wishing to obtain judgment is the claimant and the claim is for –
   1. an amount of money to be decided by the court;
   2. a specified sum of money;
   3. delivery of goods and the claim form gives the defendant the alternative of paying their value; or
   4. any combination of these remedies; judgment must be in accordance with the terms of the statement of claim plus any interest and costs after giving credit for any payment that may have been made.
6. If the party wishing to obtain judgment is the claimant and the claim is for some other remedy, the judgment must be such as the court considers that the claimant is entitled to.
7. If the party wishing to obtain judgment is a defendant, judgment must be for assessed costs.
8. If 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.
   • Part 65 deals with the quantification of costs.

Setting aside judgment entered after striking out

26.6

1. A party against whom the court has entered judgment under rule 26.5 when the right to enter judgment had not arisen may apply to the court to set it aside.
2. If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside judgment.
3. If the application to set aside is made for any other reason, rule 26.8 (relief from sanctions) applies.

Court’s powers in cases of failure to comply with rules, etc.

26.7

1. If the court makes an order or gives directions, the court must whenever practicable also specify the consequences of failure to comply.
2. If a party has failed to comply with any of these rules, a direction or any order, any sanction for non-compliance imposed by the rule, direction or the order has effect unless the party in default applies for and obtains relief from the sanction, and rule 26.9 does not apply.
3. If a rule, practice direction or order –
   1. requires a party to do something by a specified date; and
   2. specifies the consequences of failure to comply; the time for doing the act in question may not be extended by agreement between the parties.

Procedural default costs

1. In circumstances where –
   1. a pre-trial memorandum or a bundle is not filed in accordance with Rule 39.1(5);
   2. a core bundle is not filed in accordance with Rule 62.12(4); or
   3. a legal practitioner fails to comply with a provision of these Rules, a court order, a practice direction or a practice guide, and, as a result of that default, a party has incurred costs or a hearing has to be vacated, then the court may on its own initiative order the practitioner responsible to pay to any party and or to the court an amount of money which does not exceed the sum or sums specified by the relevant practice direction.
2. Any sum paid under an order made under Rule 26.7(4) may be payable in addition to any sum which the court may order a practitioner to pay by way of wasted costs under Rule 64.8 or pay under Rule 64.10.

Relief from sanctions

26.8

1. An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be –
   1. made promptly; and
   2. supported by evidence on affidavit.
2. The court may grant relief only if it is satisfied that –
   1. the failure to comply was not intentional;
   2. there is a good explanation for the failure; and
   3. the party in default has generally complied with all other relevant rules, practice directions, orders and directions.
3. In considering whether to grant relief, the court must have regard to –
   1. the effect which the granting of relief or not would have on each party;
   2. the interests of the administration of justice;
   3. whether the failure to comply has been or can be remedied within a reasonable time;
   4. whether the failure to comply was due to the party or the party’s legal practitioner; and
   5. whether the trial date or any likely trial date can still be met if relief is granted.
4. 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 court to rectify matters where there has been a procedural error

26.9

1. This rule applies only where the consequence of failure to comply with a rule, practice direction, court order or direction has not been specified by any rule, practice direction or court order.
2. An error of procedure or failure to comply with a rule, practice direction, court order or direction does not invalidate any step taken in the proceedings, unless the court so orders.
3. If 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.
4. The court may make such an order on or without an application by a party.