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Win or Lose

Win or Lose

Postby against-big-guns » Wed Oct 25, 2017 9:34 am

A sues B for under £3000. After defence filed a preliminary hearing is ordered. B turns up with counsel who persuades DDJ to strike out the claim. A appeals to circuit judge. During process it emerges claim never actually allocated to small claims track but transcript of hearing shows DDJ dealing with it as such. Circuit judge does not overturn strike out but converts it to to discontinuance. Is that a win or loss to justify giving B his costs, bearing in mind transcript shows B knew the claim had not been allocated and chose not to alert the court
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Re: Win or Lose

Postby atticus » Wed Oct 25, 2017 11:31 am

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Re: Win or Lose

Postby atticus » Wed Oct 25, 2017 2:53 pm

CPR 46.13(3) appears relevant. Note that the word used is may and not must.
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Re: Win or Lose

Postby diy » Wed Oct 25, 2017 8:36 pm

Isn't the argument that had A sued B in the small claim court, he would not normally pick up Bs costs if he lost his case. What seems to have happened here is that A sued, lost and then appealed and lost. So in that case had it been allocated to the small claim track, A risked costs by appeal?
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Re: Win or Lose

Postby atticus » Wed Oct 25, 2017 9:12 pm

There is no "Small Claims Court".

Cases are issued in the County Court. In due course they are allocated to one of three tracks: small claims track; fast track; multi track.

The OP describes a case that had not been allocated to a track at the time of the defendant's strike-out application. A's unsuccessful appeal may not help his cause on costs.
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Re: Win or Lose

Postby diy » Thu Oct 26, 2017 11:01 am

Yes - that was my understanding, I used incorrect terminology..
atticus wrote:..The OP describes a case that had not been allocated to a track at the time of the defendant's strike-out application. A's unsuccessful appeal may not help his cause on costs.


clarifies :

atticus wrote:Does it make a difference? See CPR 38.6 on liability for costs after discontinuance.
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Re: Win or Lose

Postby atticus » Thu Oct 26, 2017 11:27 am

The OP had stated those facts. He seems to have erred in thinking he could issue court proceedings without any costs risk.
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Re: Win or Lose

Postby against-big-guns » Mon Nov 06, 2017 11:44 am

Perhaps new rules have not been absorbed. All cases are now provisionally allocated to a track. The word provisional is VERY important. Any dictionary will tell you that it means temporary, subject to change etc. It is not helped by the poor English of the CPR where they mix up provisional and proposed, because proposed does not actually exists, but provsional does. What courts seem to fail to grasp is that anything provisional actually exists until changed. By strict definition this case was provisionally allocated to small claims track until ordered otherwise. This is a court officer allocation rather than a DJ. When this is done there are special rules under CPR 26. First is that if directions questionnaires (DQ) are filed with all parties agreeing to mediation then it WILL be referred to mediation. Second the case WILL be allocated within four weeks of final DQ filed. Granted, the court is not bound to allocate to small claim track but I suggest there would need to be a very good reason not to.

ALL tracks have the same regime in that directions etc can only be made after allocation as the directions possible depend on which track it is allocated to. This one had directions which only apply to small claim.

The duty to refer to mediation and allocate fell on CCMCC Salford but it sent the claim to a hearing centre before the four weeks had expired.
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Re: Win or Lose

Postby atticus » Mon Nov 06, 2017 11:59 am

If you are referring to CPR 26.3 I think that you may have misunderstood it. It does not contain any rule for provisional allocation. It does refer to proposed allocation. 26.5 specifies when allocation takes place.

CPR 26.3:
1) If a defendant files a defence –
(a) a court officer will –
(i) provisionally decide the track which appears to be most suitable for the claim; and
(ii) serve on each party a notice of proposed allocation
...


CPR 26.5
(1) The court will allocate the claim to a track –
(a) when all parties have filed their directions questionnaires; or
(b) when giving directions pursuant to rule 26.3(8),
unless it has stayed the proceedings under rule 26.4.
...


The misunderstanding appears to be in reading "provisionally decide the track which appears to be most suitable for the claim" as "provisionally allocate".

The rule shows that the purpose of that decision is to generate the notice of proposed allocation. This gives the parties the opportunity to comment and make representations if they think another track is more suitable. The DJ decides and allocates, usually at a first case management conference (26.5).
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Re: Win or Lose

Postby against-big-guns » Wed Nov 15, 2017 2:04 pm

Point taken, but I am in good company. The following is from the site of the Association of Costs Lawyers:

Part 26
Based on the provisional allocation, the court will send all parties a directions questionnaire which must be completed and returned to the court. The directions questionnaires will be different depending on whether the claim is provisionally allocated to the Small Claims Track (which has its own questionnaire) or the Fast or Multi-Track (which share a questionnaire).
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