CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd & Ors1 concerned an £18m construction dispute issued before 1 April 2014. At the review Case Management Conference Justice Coulson considered two principles of effective case and cost management, his views on which will have a significant bearing on parties’ approach to CMCs in the future.
ADR and directions
Practitioners will be familiar with the process of seeking to agree a stay to proceedings at some stage in the litigation process, in order to focus on ADR. Indeed, given that the courts set great store by ADR, some may have felt under pressure to agree lengthy stays for ADR, in fear of being criticised by the court at a later stage.
However, the TCC, addressing the relationship between the length of proceedings and costs, stated that the fixing of any lengthy “window”, for purposes unconnected with the preparation for trial such as ADR, is bad case management.
Coulson J considered that as a matter of course the TCC sought to allow the parties a reasonable period between each step in the litigation process, such that the timetable facilitated the ADR process at each stage of the litigation. The TCC kept at the forefront of its consideration the requirement to put in place a cost-efficient and sensible timetable to lead up to a fixed trial date.
In Coulson J’s view, it is usually inappropriate for the court at a CMC to build in some sort of special “window” in order that the court proceedings can be put on hold whilst the parties engage in ADR.
ADR, a process founded in consent, should not be forced on the parties to a dispute by the court. By setting a “window” for ADR, the court would effectively be dictating when ADR should take place. This was entirely inappropriate, particularly where, as in this instance, there was a dispute between the parties as to when in the litigation timetable ADR was likely to be most effective.
As such, it is clear that the TCC considers that effective case management is represented by a litigation timetable permitting the parties to consider ADR at each stage of the dispute, if so desired. In effect, parties must take all proper steps to settle a dispute while at the same time preparing for trial.
In reaching this conclusion, Coulson J acknowledged that at times the two virtues of ADR and effective case management may be in conflict. In such circumstances, it was his view that effective case management must take priority.
Having repeatedly shown an appetite for forcing litigants to adopt a sensible cost/ benefit ratio in major construction disputes, Coulson J also exercised his discretion under the original CPR 3.12 to impose costs budgets on the parties in the £18m construction dispute in a case issued before April 2014.
He concluded that the original CPR 3.12 granted the court an overriding discretion to order costs management in all cases over £2m. To fetter the court’s powers in this regard would be to permit parties to manipulate the value of their claims to avoid cost management. Moreover, in the Statement dated 18 February 2013, from the President of the Queen’s Bench Division, introducing the £2m exemption, it was stated that the use of costs management should always be considered.
The discretion to order costs management was unfettered in cases over £2m (original CPR 3.12) or over £10m (current CPR 3.12), which applies to claims from 22 April 2014. If the circumstances of the case dictated that budgets would be an effective case management tool, the same would beordered, regardless of the value of the claim.
Acknowledging that trials are often unwieldy and cost-inefficient, Coulson J’s views confirm yet again that effective cost and case management is of paramount importance to the TCC. If you are able to convince the judge that your desired course of action will best achieve effective case management, that consideration alone is likely to trump all others.