The overriding objective
The overriding objective of the courts is to ensure that civil proceedings are carried out in way that is just. The Civil Court Rules provide for expeditious and fair proceedings as well as ensuring a proportionate amount of the court’s time is be given to each case.
To facilitate these objectives, civil proceedings are allocated to one of three ‘tracks’ designed to deal with cases of different values and complexity:
All defended cases are allocated by the court to an appropriate track according to certain factors, primarily the value of the claim.
How and when does allocation take place?
The allocation questionnaires
When the defendant files their defence, the court will usually serve allocation questionnaires on both the parties. If there is more than one defendant, this is done after each defendant has filed their defence (or the time limit for them to do so has expired).
The courts have the power to dispense with these questionnaires, for instance, when an application for summary judgment has been made and the hearing is then treated as an allocation hearing.
The courts specify the date by which the questionnaires must be completed and returned (the parties will have at least 14 days). The parties cannot by written agreement vary the date for the return of the forms.
The decision of the court on allocation
Following the return of the completed questionnaires, the court will allocate the case appropriately. Normally, allocation is done in accordance with the financial value of the case.
The small claims track deals with cases worth up to £5,000 (or personal injury claims of no more than £1,000).
If the case is more than £5,000 and no more than £25,000 it is normally dealt with by the fast track – if the trial is likely to last for no longer than one day, and restrictions in relation to the evidence is satisfied.
Cases of a value higher than £25,000 (or otherwise not suitable for the small claims track or fast track) are allocated to the multi-track. The court may allocate a case to the multi-track if it considers it necessary, for example, because of the complexity of the case, the value of a counter-claim, and the amount of oral evidence required.
The courts cannot allocate a case to a lower track than its financial value unless all the parties consent.
After the court decides which track to allocate the case to, it will serve notice on all the parties informing them of the decision, together with copies of all other parties’ allocation questionnaires.
Content of allocation questionnaires
The questionnaire is necessarily extensive and asks for detailed information including:
- Whether the relevant pre-action protocol has been complied with (if applicable);
- Whether the parties wish to attempt to settle at this stage and if so whether they require a stay on the proceedings;
- 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 they have attached the appropriate fee for filing the allocation questionnaire.
If the claimant fails to pay the allocation fee, the court will serve notice requiring payment within a specified time period, otherwise the claim will be struck out. If that happens, the claimant will be required to pay the defendant’s cost, unless an order to a different effect is made.
Failure to file an allocation questionnaire
If a party fails to return a completed 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 needs to be held, the court will usually order the defaulting party to pay the costs of any other innocent parties on an indemnity basis (meaning the amount of costs payable will be particularly favourable to the receiving party). However, if the breaching party fails to attend the hearing, the court may make an order with sanctions.
In the rare situation that all parties are in default, the matter will be referred to the judge who would normally make an order that the questionnaires must be filed within 7 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, the court has power to make a subsequent order re-allocating the claim to a different track. In these cases, any restrictions applicable to the track the case was initially allocated to, for example, small claims track cost restrictions, cease to apply.