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#13784 - Track Allocation Disclosure Inspection - BPC Civil Litigation

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Track Allocation

Track Allocation

There are three tracks:

  1. Small Claims Track ("SCT")

  2. Fast Track ("FT")

  3. Multi-Track Claims ("MCT")

When is track decided?

  • After D files DS per r26.3.

    • If more than one defendant, allocation will be determined when:

      • All Ds have filed their DS; or

      • When period for filing last DS has expired, whichever is sooner. (r26.3(2))

    • If a claim is referred to Small Claims Mediation Service under r26.4A but has not been notified of any settlement, the court will presume the case is continuing and allocate within 4 weeks from the date on which the last DQ is filed (r26.5(2A) and PD263A.1.)

The Court Officer will provisionally allocate the claim and will serve Notice of Proposed Allocation on each party requiring parties to file & serve completed DQ per r26.3.

  • Applications for strike out/summary judgment should be made before or when filing DS. Track dealt with after hearing his application.

  • Court can dispense with need for DQ - PD26(2.4).

  • The Court will allocate to track after DQ is received unless stayed (eg: for Mediation) per r26.5.

  • Court may hold Allocation Hearing if it thinks necessary r26.5(4) PD26(6.1) - 7 days notice will be given.

  • Court may subsequently reallocate (r26.10)

What is contained in the DQ?

  • Parties must consult one another and cooperate (PD26(2.3)(1));

  • Parties must seek to agree CMC Directions (PD26(2.3));

  • All Directions for FT must be based on Pt 28.

  • All Directions for MTC are on the website.

Factors Governing Track Allocation:

r26.8 specifies the following factors:

  • Financial Value of claim in dispute;

    • It is for court to determine. When valuing, the court must disregard:

    • Any amount not in dispute;

    • Any claim for interest, costs, contributory negligence (r26.8(2)(d)).

    • Court may order C to justify the amount if it feels C has exaggerated his claim (PD26(7.3))

  • Nature of remedy;

  • Complexity;

  • Number of Parties;

  • Value of counterclaim/Pt 20 and complexity;

  • Amount of oral evidence required;

  • Important of claim to non-parties;

  • Views expressed by parties;

    • Parties views are important, but decision is for court.

    • Prior to 1 April 2013, parties' views were binding. (Old r26.7(3)).

  • Circumstances of parties;

If 2+ Cs started against same D with same CF, and each has a claim against D separate from other C, court will consider claim of each C separately. (r26.8(3)).

Differences between Tracks

Small Claims Track Fast Track Multi-Track Claims
Limits

r27.1(2):

PI Claims valued <10,000 and PSLA damages are <1,000.

LL/T breach of repair obligations where work is <1,000.

Any other claim <10,000 excluding harassment or unlawful eviction.

Dishonesty allegations are not suitable for SCT, or genuine disputes over amount which cannot be dealt with at disposal hearing.

<25,000 after 2009

<15,000 before 2009

AND

Expert Evidence limited to 1 expert per party and expert evidence in two expert fields.

r26.7(3) - If over 25,000, court cannot allocate to FT unless:

  1. All parties agree;

So usually, 10-25,000

Any other claim.

Claims for less than 100,000 will usually be transferred to CC unless falls within HC's jurisdiction.
Judge DJ (PD27(1)). Only CJ's with their consent (PD27(11.2)). DJs and CJs.

CC/HC Judge.

CMCs can be dealt with by DJ/CJ.
Length of Hearing 30 mins 1 day (defined as 5 hours: 10:30am-1pm, 2pm-4:30pm) Can be less than 1 day if sufficiently complex, but generally longer.
Features

r27.8 Hearing is "fair":

  • Informal; (can be in court, or "round a table")

  • No preliminary hearing unless (i) needed to ensure fair hearing and necessary for party to attend court to understand special directions; (ii) Do give summary judgment ("No real prospects") or (iii) Strike out ("No reasonable grounds") (r27.6; 14 days notice will be given (r27.6(3))

  • No strict rules of evidence;

  • Permission needed for expert evidence r27.5. It is limited. Up to 750 of the expert's fee is recoverable per r27.14(2)(f) PD(7.3)(2).

  • Court fees are less.

  • No-little legal aid available.

  • No evidence needed on oath;

  • May limit XX;

  • MUST give reasons for decision.

  • PD27(5) - Hearing will be recorded;

  • Generally, public hearing but private if parties agree (PD27(4.1)) or r39.2(3) applies. Public means 'court' - includes judge's chambers.

  • Any remedy available on FT or MTC.

Thus, No substantial pre-hearing preparation.

  • Low legal costs.

  • No representation needed.

  • 'Disposal Hearing' can be treated as FH.

As only 1 day, expert evidence will usually be in writing unless necessary for them to attend hearing (r35.5).

Standard Disclosure (r31.6)

Have a Pre-Trial Checklist (PTC) sent not more than 8 weeks before trial date/start of trial window (r278.5(2)), and must have "not less than 2 weeks" to complete (PD28(6.1)(2). Must return by specified date.

If no party completes PTC by specified date, court will order claim struck out if not filed within 7 days.

r26.11 - Claims for libel/slander are tried by judge alone, unless at first CMC party applies for jury trial.

All other cases get jury if application made within 28 days of DS, an Application is made to be tried with jury.

Will give case management directions when allocated to MTC (r29.2). Court may fix CMC/Pre-Trial Review at any time after allocation (r29.3) to determine: amendments, disclosure, expert evidence, further information, split trials, timetables.

Parties should endeavour to agree directions, and submit at least 7 days before CMC - r29.4.

Pretrial Checklist (PTC)

  • r29.6 - Court will send parties PTC ("Listings Questionnaire") for completion, and return by date specified, unless it considers claim can go to trial without PTC.

  • r29.6(3) - If no party files PTC by date specified, court will order that unless filed within 7 days from service of that order, the claim will be struck out without further order. ("Unless Order"!!!)

  • Return date will be at least 8 weeks before trial date or start of trial period (PD29(8.1)(3). On receipt of PTC, court can hold PTR.

Pre-Trial Checklist will be sent to parties "at least 14 days" before return date of PTC (PD29(8.1)(4)). Again, not less than 8 weeks before trial.
Notice

Court will give 21 days notice of FH (r27.4(2)).

No need for oral hearing if parties agree r27.10.

r27.9 - If parties don't attend, court may:

  • If C, strike out claim;

  • If D, and C does, can decide on C's evidence alone.

  • If noone, strike out.

Parties can agree to set aside judgment and rehear claim if not present, nor represented, but must make application within 14 days of Notice of Judgment (r27.11) and (i) Good reason for not attending or giving 7 days notice to court; and (ii) Reasonable prospects of success.

Must list for trial within 30 weeks from date of Directions Order (PD28(3.6)(2)), and "trial window" must not exceed 3 weeks (PD28(3.6)(3)).

10 weeks from Allocation normally exchange of WS.

3 days notice for Directions Hearing (Pd28(2.6))
Standard Directions

PD27 Appendix B (Standard Directions)

  1. Parties will f/s copies of documents relied upon no later than 14 days before hearing;

  2. Original Docs to be brought to hearing;

  3. Notice of Hearing + Length of Hearing with fee payable within 14 days of notice;

  4. Parties should contact each other with view to settlement/narrowing issues, with obligation to inform court is settlement agreed.

  5. Inform Parties EE is not allowed without Court's express permission.
Costs

Costs are limited to Fixed Costs payable under Pt 45, Court fees, and reasonable expenses, loss of earnings, expert's fees limited to 750 (PD27(7.3)(2)).

Can recover legal costs if other has behaved unreasonably in proceedings (r27.14(2)(g)).

Costs Management

  1. Now, the number of cases requiring parties to file budgets include Chancery, Admiralty etc. The only exceptions are Pt 8 Claims and 10m+ cases.

  2. Thus, all parties in Pt 7 Multi-Track claims with value less than 10m must f/s costs budgets.

  3. CMOs are now presumed mandatory, whereas previously discretionary.

Pre 22 April 2014 Post 22 April 2014
When does 'costs management' apply?

r3.12 - PD3E Costs Management applies to all multi-track cases commenced on or after 1 April 2013 except:

  1. Admiralty & Commercial;

  2. Chancery Division;

  3. Technology & Construction Court, Mercentile Court as QBD President may direct where at first CMC sums in dispute are 2m+.

unless those proceedings subject to fixed costs, noted in PD3E.

r3.12 - PD3E - Costs Management applies to all Pt 7 Multi-Track Cases commenced on or after 22 April 2014 except:

  1. Claims commenced after 22nd April 2014 and worth 10m+;

  2. Claims commenced after 22nd April 2014 and is not quantifiable, or not fully quantified, or non-money claim, and CF contains value of case at 10m+.

  3. Proceedings subject to fixed costs or scale costs, or court orders otherwise.

NB: On or after 22nd April 2014, the Costs Regime only applies to Pt 7, and not Pt 8 anymore. Costs budgeting doesn't apply to cases worth 10m+, when court orders, or parties agree otherwise.
When to file Costs Budget?

r3.13 - Unless ordered otherwise, all parties except litigants in person must FILE and EXCHANGE budgets. It must be done by the date in the notice under r26.3, or if no date specified 7 days before first CMC.

Litigants in person shall be provided with a copy of the budget of any other party per PD3E(2.8).

 PD3E(2) - Parties must file costs budget except in above cases. Court has a discretion in all other cases to require parties to file costs budget. In all cases,...
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