Case Settlement Conferences in civil cases in the District Court – With effect from 2 January 2021

On 2 January 2021, a case settlement process will come into effect and will apply to selected civil cases in the District Court, except Personal Injuries, Employees Compensation, false detention claims against the Government and Equal Opportunities cases. At a Case Settlement Conference (CSC), a CSC Master will assist the parties to narrow down the issues in dispute and review any previous without prejudice negotiations between them (and any sanctioned offers and payments) with a view to helping the parties achieve settlement. The CSC is an additional platform (i.e. additional to mediation) for promoting settlement. The hope is to achieve a collaborative effort by everyone involved (the Court, parties and their legal representatives) to formulate realistic ways to settle a case.

The Judiciary has issued a Guidance Note for CSCs.

At what stage is a CSC fixed?

The Court can fix a CSC at any stage of the proceedings, but it will usually be directed at the Case Management Summons stage or when a consent summons is submitted under Order 25 of the Rules of District Court seeking directions for the further conduct of the case.

What cases are suitable for a CSC?

The Court will decide whether or not the case is suitable for a CSC. The Court does not have sufficient resources to have a CSC in every case and will therefore only select those considered suitable for such. The Court will in particular, take into consideration information provided by the parties in the Timetabling Questionnaire.

Example of cases that may be suitable for a CSC:

• Where legal costs will outweigh the amount claimed e.g. water leakage cases where experts are necessary and home decoration cases alleging defective works where experts, Scott Schedules and lists of defects are needed, but the amounts involved are not high.      
• Disputes between family members e.g. over ownership of property where emotions are high and where a CSC may serve to give them information about settlement so that they can make informed choices.  
• Where the parties have previously indicated in a Timetabling Questionnaire that they are willing to mediate, but for some reason the mediation has not taken place e.g. because the parties could not agree on a mediator.
• Cases involving litigants in person.

What cases are NOT suitable for a CSC?

Examples of cases which may not be suitable for a CSC:

• Parties have given good reasons showing that their case is not suitable      
• Parties produce a mediation report as per Appendix 1 of the Guidance Note, showing that they have already attended mediation and certify that there is no reasonable prospect to settle and there has been no material change in the meantime        
• Where a party cannot personally attend the CSC e.g. because of travel difficulties 
•  Frivolous/vexatious cases.

When will the CSC take place?

Once decided that a case is suitable for a CSC, the Court will decide when it will take place and give directions for a CSC. The Guidance Note contains a draft of typical directions that may be given.

• In some cases it may be that no meaningful settlement discussions can take place until exchange of evidence, including expert evidence     
• Some cases may benefit from early settlement discussions before substantial costs are incurred 

Preparation for a CSC

One of the parties, as directed, must deliver a CSC bundle, including:

• One page summary of each party’s case.
• List of issues.
• Copies of without prejudice correspondence (including any sanctioned offers/payments).
• Copy of any mediation report.     

Legal representatives must prepare and exchange a Statement of Costs, which includes details of costs incurred up to the CSC and estimated costs up to and including trial. This should not be detailed bill. It should be a brief, succinct summary of the costs so far and expected further costs.  

Attendance of parties at a CSC

The parties themselves must attend the CSC. If a party is a company, an authorised representative of the company must attend and it must be someone who is familiar with the litigation and has authority to settle. If the company is acting in person, it must be a director authorised under Rules of District Court Order 5A.   

Legal representatives (if any) of each party also attend the CSC and this must be the handling solicitor or someone familiar with the case. The legal representative’s role is not to act as an advocate, but rather to support and advise their client and help them achieve settlement. If during the CSC a party needs advice from their legal representative, there can be a break during the CSC to enable them to speak to their legal representative.   

The CSC hearing

The hearing is without prejudice and the CSC Master will not have any further involvement in the case, other than to conduct any adjourned CSC or give further directions.

CSC Masters can only make 3 types of order:

• An order adjourning the CSC.
• A Consent Order, disposing fully/partially of the case (including an order narrowing down issues to be tried).
• An order for directions to progress the case to the next stage e.g. Case Management Conference.

The CSC Master may assist parties achieve settlement by reviewing and evaluating any without prejudice negotiations. The Master will not deal with any contested case management issues and no interlocutory applications will be entertained, unless they are taken out for settlement purposes.  

Costs of the CSC

Generally, each party’s costs of and incidental to the CSC will be the party’s costs in the cause. Default in compliance with directions for preparation of a CSC and unreasonable conduct at the CSC may result in costs sanctions.

Comment

The CSC scheme is not intended to pressurise parties to settle, but rather enable them to make an informed decision on the most effective way to resolve a dispute. Even if a settlement cannot be reached at the CSC, it may narrow down the issues and therefore save both costs for the parties and judicial resources.