Case Management and Procedural Discipline in England & Wales: Fundamentals of an Essential New Technique

Abstract

The English courts possess extensive ‘case management’ powers. The court must ensure that matters are properly focused, procedural indiscipline checked, expense reduced and progress maintained or even accelerated. Case management has three main functions: firstly, to encourage the parties to pursue mediation, where this is practicable; secondly, to prevent the case from progressing too slowly and inefficiently; finally, to ensure that judicial resources are allocated proportionately. This requires the court and parties to consider the competing demands of other litigants who wish to gain access to judges, the court’s ‘scarce resources’. In his 22 November 2011 lecture ‘Achieving a Culture Change in Case Management’ Sir Rupert Jackson commented: ‘… in this context Scylla is officious intermeddling by the courts, which gobbles up costs to no useful purpose’ and ‘Charybdis is laissez-faire litigation, which leaves the parties to swirl around in uncontrolled litigation—with all the problems which Lord Woolf identified in his Reports.’ Appellate courts are prepared to show considerable deference to judges’ case management decisions, including decisions concerning the conduct of trial. But appeal judges will overturn decisions if they are incorrect in principle, or based on failure to consider all pertinent factors, or motivated by an irrelevant consideration, or where the judge has misunderstood the purpose of the relevant discretion. Lord Neuberger (since 1 October 2012, President of the Supreme Court of the United Kingdom), in his lecture entitled ‘Docketing: Completing Case management’s Unfinished Revolution’ (2012), proposed that in complex cases individual judges should take charge of the case, from inception to trial, including conducting the trial.