The three tracks and the overriding objective
In civil proceedings an important feature of the way cases are carried out is that they are to be dealt with justly. This has been embodied in the overriding objective and provides for expeditious and fair dealing with the proceedings as well as proportionate amount of the court’s time to be given to each case. In order to secure these objectives, there are currently three tracks designed to deal with cases of different values and complexity and those are:
All defended cases are allocated by the court to an appropriate track according to factors as considered below.
How and when does allocation take place?
The allocation questionnaires
When the defendant files his defence, the court will usually serve allocation questionnaires on all the parties. If there is more than one defendant, this is done after all defendants have filed their defences or the time limit for them to do so has expired.
The courts have the power to dispense with these questionnaires. In practice, such is done for example when an application for summary judgment has already been made and which has then been treated as an allocation hearing.
Prior to sending the allocation questionnaires to all the parties, the courts specify in them a particular date before which those are to be completed and returned. The period for return must be of at least 14 days. The parties cannot by written agreement vary the date for the return of the forms.
The decision of the court
Following the return of the filled questionnaires, the court will allocate the case. Normally, allocation is done in accordance with the financial value of the case.
In particular the small track deals with cases of value up to £5,000. If the case is more than that amount but less than 25,000 it is normally dealt with by fast track. Cases of value above are normally considered more suitable for the multi-track.
However, a court may allocate a case to a higher track if it considers such course of action necessary. For example it could be necessary due to the complexity of the case, value of any counter-claim, the amount of oral evidence including expert evidence etc.
The courts cannot allocate a case to a lower track than its financial value unless all the parties consent.
After the court decides to which track to allocate the case it sends a notice on all the parties informing them of the decision together with copies of the other parties’ allocation questionnaires.
Content of allocation questionnaires
The form is extensive and in places asks for detailed information. It seeks clarity about:
Whether the relevant pre-action protocol has been complied with (if such is applicable);
Whether the parties want to attempt to settle at this stage and if so whether they require a stay on the proceedings to do so;
Possible transfer to other court;
The amount of the claim in dispute;
Details of any expert or other factual witnesses and their role in the trial;
The parties’ view on the appropriate track for the case;
The parties’ view on the estimated length of the hearing;
The parties’ suggest directions for the appropriate case management of the claim;
The parties’ estimated costs;
Any other documents that could be attached to the questionnaire if they are to be used in the proceedings.
The form also has a specific section for the parties to indicate whether or not they have attached the appropriate fee for filing the allocation questionnaire.
If the claimant fails to pay the allocation fee, the court will serve a notice requiring payment within a specified period of time. If after that the claimant fails to do so the case will be struck out. If the case is struck out the claimant will also be required to pay the defendant’s cost, unless order to a different effect is made.
Failure to file an allocation questionnaire
If a party fails to return a filled questionnaire, the court may give any direction it considers appropriate. If the court considers it has enough information to do so, the court can allocate the case to a track. Furthermore, it may fix an allocation hearing and make a direction for any of the parties to attend and assist the court to allocate the case.
If an allocation hearing is held, the court will usually order the defaulting party to pay the costs of any other innocent parties on indemnity basis. However, if the breaching party fails to also attend the hearing, the court may make an order with sanctions.
In the rare situations of all the parties being in default, the file will be referred to the judge who would normally order for the questionnaires to be filed within seven days from the service of the order. Upon further non-compliance with that order, the court has the power to strike out any claim or counter-claim with or without any further order from the court.
Within the courts general case management powers is the power to make a subsequent order re-allocating the claim to a different track. If such is done any restrictions applicable to the track the case was initially allocated to, for example small claims track cost restrictions, cease to apply.