CAN COURT ALLOCATE TO SMALL CLAIMS TRACK AFTER TRIAL?
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.
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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