Kerry Underwood


with 14 comments

May a judge re-allocate a case to the small claims track after having given judgment?


That is precisely what happened in Newport County Court recently.


There were two claimants in a fixed costs personal injury case and they won at trial.


The trial judge accepted that each was entitled to fixed recoverable costs, that is in principle there would be two sets of preparation costs and two sets of advocacy fees, even though only one advocate appeared at trial.


I deal with this general issue in my blog – Advocacy Fees in Fixed Costs Cases.


However one of the claimants was awarded just £200.00.


The judge, apparently accepting that there would have to be two sets of fees if the matter remained in the fixed costs regime, reallocated the matter to the small claims track after having given judgment.


He then awarded fixed costs of £80.00 being the appropriate small claims track level of fixed costs.


No doubt the judge was unhappy with the prospect of the claimant getting over £3,000.00 in fixed recoverable costs on a claim where he had just awarded £200.00.


That raises the issue of whether a judge has the discretion in such a case not to order fixed costs, or to award some other sum.


It also raises the issue of whether a judge in a fixed recoverable costs case can, or indeed is bound, to apply the proportionality test set out in CPR 44.3(5).


Is a judge allowed to reallocate a claim to the small claims track at any time – even after judgment has been given? As with so many of the Jackson Reforms there are more questions than answers.


However in Conlon v Royal Sun Alliance and Insurance plc [2015] EWCA Civ 92


the Court of Appeal, while on the facts of the case declining to reallocate the claim, held that it did have the power to do so and a court has the power retrospectively to re-allocate the claim, which is what happened in the Newport County Court case referred to in this piece.


The Court of Appeal said this:-


“19.        I therefore accept that this court has the power to re-allocate this claim from the small claims track to the multi-track. It is also clear that, were we to make that order, any special rules applying to costs of claims proceeding in the small claims track would continue to apply to the claim up to the date of re-allocation, unless we were to order otherwise. It is, I think, implicit in rule 46.13 that the court has the power to order otherwise and so, effectively, backdate the re-allocation for costs purposes, though any court contemplating making such an order would need to be satisfied that there are good reasons for doing so.”


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Written by kerryunderwood

July 14, 2016 at 11:30 am

Posted in Uncategorized

14 Responses

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  1. With respect it is a south Wales Court. The judges down there are doing all sorts of crazy things. I won a One day FT Trial yesterday, Damages £4010.00, beat my part 36 ( which was made 12 months early PRE-ISSUE) by £1000.00. Judge refused indemnity costs and gave me fixed costs because I had filed my statement of costs 24 hours before the Trial not 48 hours before ( This cost us about £6000.00 in costs and the Claimant about £600.00 in damages). D did not even file a statement of costs !! Claimants get a tough ride down there !


    July 14, 2016 at 11:45 am

    • Gavyn

      Think that you will win on appeal on that one. Steven Turner of counsel has kindly drawn my attention to a Court of Appeal case that he appeared in- Conlon v Royal Sun Alliance [2015] EWCA Civ 92 where the Court of Appeal declined on the facts retrospectively to re-allocate but held that a court had the power so to do:

      ” I therefore accept that this court has the power to re-allocate this claim from the small claims track to the multi-track. It is also clear that, were we to make that order, any special rules applying to costs of claims proceeding in the small claims track would continue to apply to the claim up to the date of re-allocation unless we were to order otherwise. It is, I think, implicit in rule 46.13 that the court has the power to order otherwise and so, effectively, backdate the re-allocation for costs purposes, though any court contemplating making such an order would need to be satisfied that there are good reasons for doin so.” (Paragraph 19 of judgment).



      July 14, 2016 at 1:46 pm

  2. This CANT be right (surely?). The Small Claims Track is a Case Management track – a process for managing the case to trial.

    The fixed recoverable costs in a Small Claim are limited to CPR 45 not because the case is low value, but because it is felt that the case, being dealt with on the SCT regime, can be adequately presented by a litigant in person without legal representation.

    The whole point is that a court decides upon track, and sets directions accordingly. A Small Claim does not require the fixed rules of evidence to apply, there is no disclosure, no need for the complex provisions on expert evidence under CPR Part 35 to apply, and a limited-time semi-inquisitorial hearing.

    It is ludicrous for the court to:- a) allocate a case to a track involving standard disclosure, CPR 35 in full, full trial procedures to be followed with examination in chief (usually but not always by witness statement standing as evidence), cross-examination, re-examination, etc. and then b) after that had happened decide that the case could have been heard without legal representation under CPR 27.

    It is also ludicrous for the court to take the result into account. If the “logic” that the DJ or Deputy DJ concerned applied is followed, then that High Court chancery case for £35,000,000 claimed against a Khazakhstani oil Oligarch, should be retrospectively allocated to the Small Claims Track on the grounds that the claim was dismissed and damages recovered were therefore under £10,000.

    Dominic Cooper

    July 14, 2016 at 1:22 pm

    • Dominic

      Logically, I agree with you that it cannot be right that a matter can be reallocated at the end of the case, for the reasons that you give – namely that allocation is about how the case should be dealt with during the life of the case, not a retrospective look at how it should have been dealt with.

      However, as you will see from the update on this post the Court of Appeal in

      Conlon v Royal Sun Alliance and Insurance plc [2015] EWCA Civ 92

      held that a court did have the power to reallocate a matter and had the power to do it retrospectively, but I agree with you that that makes no sense at all.

      I am not quite sure that the logic in the last paragraph of your comment works. The point is that that general rule is that the winner gets costs and the loser pays them and therefore if the case is lost completely, then although obviously there are no damages one looks at the value of the claim when looking at costs and proportionality etc.

      It is a different situation where a claim is won by the claimant but the amount of damages are very low. For example in the Kazakhstan Oil Oligarch example, had the Oligarch won but only received £5,000.00 damages then it would be open to the court to only award small claims track fixed costs and indeed potentially to order the successful claimant to pay the costs of defending the matter in the multi-track unnecessarily.

      I think that the key issue here is whether in a personal injury case heard in the fast track the judge has any discretion at all to order other than fixed costs.

      Whereas there is a clear power, under the escape clause, for the court to award the claimant more than fixed costs there is no power within the fixed costs regime for the court to award less than fixed costs. If there were then effectively we would be back to assessment on each and every case and the fixed costs scheme would be pointless.

      All of these issues will assume much greater significance if fixed costs are extended upwards to higher value claims and horizontally to all types of civil claims as proposed.



      July 18, 2016 at 4:41 pm

  3. The court has the power to reallocate a claim under CPR 26.10.

    The court also has discretion as to costs, therefore where a claimant pursues a claim asserting he is entitled to damages above £1000 but loses at trial and is awarded £200 why should he benefit by being awarded his costs, when, if his case had been brought appropriately and appropriate damages sought ie that he accepted he was only entitled to £200 his case would have been allocated to the SCT?

    I can appreciate that damages are not always the issue in that a point of law may arise or there may need to be a lengthy trial (for example a breach of human rights- for which damages may be less than £1000) however, we have no details as to whether those circumstances applied in this case.

    If it was simply the damages will meant it was allocated to the FT then why if damages are awarded on a SCT level should the claimant recover costs?

    David Shaw

    July 14, 2016 at 5:38 pm

    • But one of the claims here was above the Small Claims Limit and in those circumstances should be heard together – see Dilip v Paynes Dairies Ltd – see my post Issuing Small Claims with Cost-Bearing Claims – so the matter would not have been allocated to the Small Claims track even if it was apparent that it was only worth £200.

      Has the court got a discretion on costs in a fixed costs fast track claim? I think not. The CPR give power for a claimant to escape fixed costs but not a defendant to argue that fixed costs are too high in any given case. I am sure that that is why the Judge in Newport County Court did what he did.



      July 14, 2016 at 5:57 pm

      • I agree with you Kerry. If one of the claims was above the small claims limit, then the matter should not have been re-allocated to the small claims track.

        However, does the court have discretion on costs in a fixed costs fast track claim? I believe so.

        If 2 successful Claimants are saying that they are entitled to 2 sets of fixed costs, then surely they must expect the provisions of Part 45 to apply to each Claimant. Note that fixed costs under table 6B only applies to claims that settle for over £1000. Also note that to recover fixed costs, a claim must have been submitted through the Portal initially.

        For example, a Claimant submits their claim to the portal for personal injury. The matter drops out because the Defendant denies liability. However, when proceedings are issued a second Claimant is added to proceedings to recover vehicle related damages because the first Claimant was baliee in possession of the second Claimant’s vehicle. The claim is allocated to the fast track. The first Claimant’s PI claim settles for £5,000 and the second claimant’s claim for vehicle related damages settles for £6,000.

        Does the second Claimant recover fixed costs under Table 6B in this scenario? I think not.


        Josh Coleman

        July 15, 2016 at 10:31 am

      • I agree with you Kerry, I don’t believe that the Court has any discretion. In the simplest of terms it is set out in CPR 45.29B

        Application of fixed costs and disbursements – RTA Protocol


        Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, if, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

        (a) the fixed costs in rule 45.29C;

        (b) disbursements in accordance with rule 45.29I.

        Once proceedings have been issued, there is is nothing in Table 6B which outlines that the claim needs to settle for in excess of £1000.00 for fixed costs to be appropriate….


        August 16, 2016 at 11:21 am

      • Many thanks.


        August 17, 2016 at 10:34 am

    • Take a Fast Track case where COQS doesn’t apply, or there was a Part 36 offer from the Defendant of £750 which is not beat at trial.

      Judge at trial awards £500 damages.

      Can Claimant say “oh, well actually, this now ought to be reallocated to the Small Claims Track now, where Part 36 doesn’t apply / costs recovery doesn’t apply”? If not, why not?

      I think it is salient to point out that in Conlon, the Court of Appeal specifically referred to the fact that the parties had prepared for and dealt with the case on the footing that it had been allocated to one particular track and it would have been unfair for reallocation to occur after that.

      I would say Conlon is authority for the proposition that the court has power to reallocate after trial, and back-date the application of the costs principles (which is a separate decision), but that they should not be used in circumstances where it would cause unfairness (see Para 20 of the judgment – “But up to that point RSA was entitled to assume that the special costs rule set out in rule 27.14 applied to the claim, including this appeal. It behaved entirely reasonably in conducting its defence as it did and it had no reason to suppose a special order would be made against it.”)

      I’m sorry but this decision (of the original Judge in Newport) just smacks of “man in the pub” logic – “well £200 is a small claim innit, so it should be a small claim. Them solicitors getting thousands for little claims, etc.”.

      Dominic Cooper

      July 15, 2016 at 10:22 am

  4. Interesting point as to whether a sub £1,000 is indeed ever covered by Fixed Recoverable Costs in the Fast Track, as compared with the Small Claims Track, where it is covered by very low fixed costs.

    The problem with the Fixed Costs Table is that we know that it does not tell the whole story. The pre-issue bands are £1,000 to £5,000, £5,001 to £10,000 and £10,001 to £25,000, but we know claims above £25,000 are covered. For example if the non-vehicle related claim is no more than £25,000 then however high the vehicle- related damages are, the matter is covered by Fixed Costs, presumably by applying the core fee plus percentage of damages formula.

    Why should that logic not apply to sub- £1,000 personal injury claims that are dealt with in the fast track?



    July 16, 2016 at 4:02 pm

    • Of course, the solution is simple:-

      On any claim where a party is represented and succeeds at court (other than Small Claims), the winning party (claimant or defendant) gets to claim, say £250 for drafting the claim, £100 for serving other than by post, £250 for Directions Questionnaires and any CMC, £250 if the case proceeds to listing questionnaires and Fast Track Trial fees if it goes to trial. No escape clauses, no predictable, standard, fixed, tabled, or any other costs. No COQS, no indemnity basis, and save as above no inter partes cost shifting.

      Costs budgeting, provisional assessment, detailed assessment, summary assessment, guideline rates, CFA challenges and the indemnity principle all abolished.

      And (although this is another issue) there should be introduced a rule of law that no pre-action settlement offer or agreement shall be either binding or taken into account by any court UNLESS a Settlement Agreement has been signed, witnessed by an independent solicitor and a certificate of legal advice given. Then insurers would either stop making direct offers OR if they did, the client would be guaranteed legal advice if they wanted to receive it.

      Dominic Cooper

      July 18, 2016 at 4:54 pm

  5. Reblogged this on Kerry Underwood.


    August 11, 2016 at 10:01 am

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