Clients tend to imagine that the decisive moments of litigation happen at trial. In the modern system, many of them happen much earlier, at a hearing most clients never attend and few could name: the case management conference. It is worth understanding, because what is fixed there governs everything that follows.

What the CMC is for

Once a defended claim is allocated to its track, the court convenes a case management conference to take control of the action. The philosophy is the overriding objective in working clothes: cases are to be dealt with justly and at proportionate cost, and it is the court — not the parties — that controls the pace and shape of proceedings. At the CMC the court will typically:

  • identify and record the issues genuinely in dispute, and dispose of those that are not;
  • give directions and fix the timetable through to trial;
  • determine the scope of disclosure, which the rules now calibrate to what is necessary rather than what is possible;
  • control witness evidence, including the number of witnesses and the exchange of statements;
  • decide whether expert evidence is reasonably required, in what fields, and whether a single joint expert will do; and
  • in multi-track cases within the costs management regime, review the parties’ costs budgets and record what spending is approved.

The questions that matter to the client

Each of those bullet points is a strategic decision wearing procedural dress. Issue-narrowing determines what the fight is actually about. Disclosure scope frequently decides commercial cases before trial, because it determines which documents will ever be seen. The expert directions can be worth more than any advocacy at trial. And the costs budget converts the client’s exposure from an open-ended fear into an approved figure — exceed it without good reason, and the excess may be irrecoverable even in victory.

The client should also know that the court will expect the parties to have considered settlement. The expectation that runs from the Beldam Report through the modern authorities is that the question of alternative dispute resolution is acknowledged at case management conferences and pre-trial reviews. Judges ask. A party without a considered answer — and a record of it — invites both judicial displeasure and, eventually, a costs sanction.

Preparing properly

Good preparation for a CMC is unglamorous and decisive. Instructions should be taken early on which issues can be conceded, what disclosure will really be needed and what it will cost, which witnesses matter, and what the realistic budget is. Draft directions should be agreed with the other side wherever possible — courts notice which party behaved constructively. And the client’s own commercial calendar belongs in the room: a trial date is also a business event.

A case well managed at the CMC arrives at trial lean, budgeted and focused — if it arrives at trial at all. A striking number do not, precisely because the conference forced both sides to confront the shape and cost of what they had started. That, too, is the overriding objective doing its work.