Kerry Underwood


with 2 comments

In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here

In my blog Can Court Allocate to Small Claims Track after Trial? I ask that very question and reported that that had happened in Newport County Court.

I also refer to the case of

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

where the Court of Appeal, while on the facts of the case declining to re-allocate the claim, held that it did have the power to do so and the court has the power retrospectively to re-allocate the claim.

That has happened again, this time in the case of

Kavak v FMC Chemicals Limited, Manchester County Court 9 April 2018 Case No. DO7YM204.

There the case had been allocated to the fast-track and at trial the judge dismissed the claimant’s claim for personal injury but allowed a claim for damage to his vehicle, and also held that the claimant was 25% to blame for the accident.

The net effect was that judgment was entered for the claimant in the sum of £855.57.

There was no suggestion of dishonesty.

The claim had started in the RTA portal and as the defendant had disputed causation, and had alleged contributory negligence the matter exited the portal and became the subject of Part 7 proceedings.

The claimant contended that because the matter had started under the RTA portal, then the fixed costs regime should apply.

The defendant contended that the claim should never have gone on the portal as the claimant could not prove that he had suffered injury and that the value of the claim was such that it ought to have been commenced by proceedings which would then have been allocated to the small claims track.

The judge recognised that a case should only be re-allocated between tracks with retrospective effect where there is good reason to do so and accepted that retrospective re-allocation can lead to a situation in which a party has conducted litigation on certain expectations as to what steps are reasonable to take, and therefore what costs are reasonably incurred, which expectations are undermined by re-allocations.

Nevertheless, on the facts of the case, the judge came to the conclusion that it was right to re-allocate the matter after trial.

The decision as to whether to pursue a personal injury claim was that of the claimant and his lawyers and such a claim could not, or should not, have been pursued unless the claimant believed that he had suffered personal injury and his lawyers considered that he had a reasonable prospect of showing that.

The judge said that he could not “see that he could ever properly have brought a claim for such injury.”

He also said this:

“15. It should be noted that, based on the Claimant’s argument, there is an incentive to a claimant to state that he has suffered personal injury so as to seek to achieve the (perceived) benefits of a case being in the fast-track. There is certainly a potential benefit to those who may recover legal costs because of allocation to the fast-track. In my judgment it would be unattractive to make orders that put a premium on presenting a claim that cannot be justified.”




Written by kerryunderwood

September 4, 2018 at 8:10 am

Posted in Uncategorized

2 Responses

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  1. Whilst this decision accords with the case law, I personally do not think that it is right on principle.

    Firstly, the whole point of allocation is not to determine whether a Claimant’s solicitor gets costs or not (which seems to be the reasoning of the courts). It is to determine what procedural steps need to be taken to get the matter to a trial. If a case is allocated, then directions are given. If those directions are complied with, it seems ridiculous to say – after the event – that the case is now one in which a different system applies. It’s like saying I got the bus to work, but after I’ve got off it’s now going to be called a train, and they want an extra £8.50 for the ticket.

    Secondly, the rules themselves – CPR Part 45.29A make clear that in a case which started on the portal and does not continue on the portal, then Section IIIA of Part 45 applies in all cases, save where an order is made under 45.24 or the case is allocated to the Multi Track as per 45.29B. My reading has always been that this means that any ex-portal case can only attract Fixed Costs unless you escape them under 45.29J in “exceptional” cases. So if you had, e.g. credit hire or a loss of earnings claim which accrued so that the case started off in the portal but by the time it gets to trial the value is just over £25,000, you don’t get to say “well this should have been a multi track case so we want open costs”. The court would actually have to retrospectively re-allocate it, which there is no reason to do (and in any event this is only because Multi Track is explicitly mentioned in the rule – inclusio unius est exclusio alterius)

    Surely the better way for the court to proceed if they feel the claimant or claimant’s solicitor is guilty of some sort of misconduct by putting a non portal case on the portal is simply not to make a costs order in their favour at all – or even order them to pay the Defendant’s costs due to misconduct. CPR 44.2 surely applies. But if the court decides the Claimant is entitled to costs and should be awarded them, the amount of those costs are fixed and determined by the rules. There is no discretion as to the quantum of those costs (unless the Claimant applies for costs in exceptional cases under 45.29J).

    Although to be honest it must be obvious, even to a member of the Civil Procedure Rules Committee that any rules which have so many amendments, qualifications, cross references to other rules, inserted amended rule numbers, and for the most part actually repeat themselves numerous times, are a dogs dinner and should be started again.

    Dominic Cooper

    September 4, 2018 at 10:40 am

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