Civil Litigation Solicitors

The court has a duty to manage cases, in order to deal with the cases effectively, expeditiously and fairly it is necessary to use those powers. Essentially, the court is given the power to take an active part in the management of the case. The courts manage cases by making Orders, which set directions to the parties as to what they have to do and by when.

At an early stage the court analyses the issues, control the progress of the case as well as managing the timetables. It is within the courts management powers to allocate cases to various tracks.

In order to secure these objectives, there are three tracks designed to deal with cases of different values and complexity and those are the small claims track, fast track and multi-track.

The small claims track, which as the name suggests is for low value claims. It is the normal track for a claim which has a value not exceeding £10,000. The cases in the small claims track are relatively straightforward.

After allocation to the small claims track the Court will give standard or special directions eg. the disclosure of evidence. The directions will be more simplified than those in other tracks. The Court will set a date for the hearing, either final or preliminary, or alternatively may give notice that it will deal with the claim without a hearing.

Small claims may proceed in a method the Court considers to be fair and the hearing will be informal. A party may be legally represented or represent themselves. This track has been designed to make it possible for parties to represent themselves. Matters within this track will be heard by a District Judge, the Judge’s task will include a responsibility to elicit the evidence and ensure that the witnesses called give relevant evidence and produce documents which will assist the court to arrive at the correct decision.

It is important to bear in mind the cost implications and for the party to consider the availability of recovery of costs before instructing a legal representative, as there is a high risk costs may not be recovered.

The fast track is the normal track for any claim of a value greater than that for the small track claim, but which does not exceed £25,000. The trial is unlikely to last for longer than a day with any expert evidence limited to one expert per party.

Cases which value in excess of £25,000 will be allocated to the multi track. Such cases may involve large claims. Given the complexities of such cases the Court will hold a case management conference; we at Duncan Lewis would represent you at the CMC and at Court to explain the issues and the proposed evidence. It is important to be aware that case management conferences are crucial in litigation and complex cases.

The case of Conlon v Royal Sun Alliance [2015] EWCA Civ 92, discusses the re-allocation of tracks. The case involved a claimant who took a credit hire case from the small claims court to the Court of Appeal, the appeal judges concluded that she must pay for her own costs because the defendant’s insurer’s behavior was not ‘unreasonable’.

Giving the leading judgment, Lord Justice Kitchin said he could see “nothing unreasonable” about the RSA’s behaviour. “The claim was properly allocated to the small claims track and RSA defended it as it was entitled to do,” he said.

“The deputy district judge had a wide discretion as to how he dealt with the hearing and, in accordance with the rules, conducted it in a relatively informal way, no doubt in an attempt to arrive at a just decision but at proportionate cost.”

When the claimant appealed again, the parties were told that their case would be listed with Stevens v Equity Syndicate Management [2015] EWCA Civ 93. The Judge explained: “Until that time it had treated the claim in just the same way that it would have treated any other low-value claim proceeding in the small claims track.”

Having considered its position, the insurer “decided that it had no wish to incur the associated costs of engaging further with the substantive issues arising on the appeal” they made two offers to the claimant to pay the amount the claimant was seeking but not her costs.
On that basis the Court concluded that the defendant’s insurer had acted reasonably and responsibly. The judge also rejected the argument that the case should be re-allocated to the multi-track under CPR 26.10.

Kitchin LJ said it was “implicit” in CPR 46.13, that if that occurred, the court could backdate the re-allocation for costs purposes, as long as there were “good reasons”. Importantly, he said it was “far too late” to make a re-allocation order in this case, and the application for re-allocation was made four months after the filing of notice of appeal.

Lord Justice Kitchin dismissed the application for re-allocation and made no order in respect of the costs of the claim, including the latest appeal.

It is evident from case law that the Court reasoned it cannot make an order for costs on the appeal of a small claim unless the defendant’s behavior had been unreasonable or unless it re-allocated the claim to the multi-track pursuant to CPR 26.10. One aspect to consider is that although the court has the power to back-date reallocation for the purposes of costs rules, the usual rule is that track-specific costs will apply until the date of re-allocation. The case also highlights the importance of timing as the Court rejected the argument to back date reallocation because the said application for back dated reallocation came four months after the appeal notice was filed and that the defendant had been entitled to assume that the special costs rule under CPR 27.14 was to apply to the appeal.

Author Anthony Okumah is a Director and Head of the Duncan Lewis Civil Litigation and Dispute Resolution Department. He specialises in dispute resolution (litigation, arbitration or mediation), professional negligence claims predominantly against solicitors, debt recovery; insolvency; contractual disputes, leasehold disputes and contentious probate cases. Anthony also has an in-depth experience of boundary and neighborhood dispute cases and additionally he regularly conducts his own advocacy in both the County Court and the High Court which allows him to represent his clients throughout their retainer.

Duncan Lewis is one of the leading solicitors in England and Wales offering expert litigation and alternative dispute resolution services. Duncan Lewis has acknowledged expertise in advising corporate clients on litigation matters – as well as advising private individuals in cases where litigation might be an option. If you require further assistance on this subject or any other property related litigation matter, please contact our litigation team on 03337720409.