REFUSAL TO REALLOCATE: DISTRICT JUDGES WILL NOT ACT AS THE “COURT OF APPEAL” IN ALLOCATION DECISIONS

In Williams -v- Santander UK PLC [2015] EW Misc B37(CC) District Judge Stamenkovich considered an application to re-allocate a case from the small claims track.

“I can see no reason to sit as a Court of Appeal from my fellow Judge in terms of allocation, bearing in mind all the representations were available to him at the time of allocation, and they have simply been repeated today.

THE CASE

The claimant was seeking damages from the defendant for alleged negligence in the selling of an investment policy. the case had a value in the £5,000 – £7,500 region.  After consideration of detailed submissions from both parties in the Directions Questionnaires the judge allocated the matter to the small claims track. The claimant made an application for the action to be re-allocated.

KEY POINTS

  • There had to be good reason to re-allocate a case.
  • The original allocation order had been made after consideration of the lengthy submissions from both sides.
  • The original order was based on the premise that allocation to any other track would lead to costs being disproportional.
  • The submissions made were, essentially, repeating the submissions that had already been made.
  • The court would not re-allocate the action.
THE JUDGMENT
  1. THE DISTRICT JUDGE: This is an application effectively to re-allocate, in view of my earlier ruling, an allocation made by District Judge Atkinson by an order dated 13 th July, sent out on 25 th July, this year.
  2. When the matter was allocated by the District Judge he had vast amounts of material on which to base his decision. The provisional allocation to the small claims track came from the N149. The Claimant’s Directions Questionnaire was, in fact, not a small claims track questionnaire that they filed, but a fast track and multi-track questionnaire and contained no less than 38 paragraphs on submissions which went through everything relating to the court’s consideration on allocation. It appears at pages 32 to 49 of my bundle. It seeks consideration of allocation to the fast track. It refers to expert evidence with a proposed estimate of somewhere in the region of £1,500 to £2,000 plus VAT and it goes through the complexity of the facts and the law, the evidence that will be required, the parties being placed on an equal footing, their respective resources, the importance of the claim to the persons who are not now parties and paragraph 20 onwards deals with the question of expert evidence. Paragraph 26, the inequality of arms and, again, back to experts to the end of the submissions.
  3. The application before the court today by the claimant does not rely on all of those grounds. It simply relies in the application (because the application itself, as I already indicated, was, in my view, issued on the wrong procedural basis) on two aspects for the court to consider, on reallocation, and the first being the inequality of arms which is referred to in the submissions made to the District Judge and the legal complexity. Mr Varma has tried to extend that by adding in the question of experts.
  4. The defendant’s submission on allocation was on the small claims track form but equally went into 30 paragraphs, as to why the court should allocate this on the small claims basis and that appears at pages 50 to 62 of the bundle, the actual written submissions being on 53 to 58. It deals with the claim; it deals with at 26(8), the nature of the remedy, the financial claim, the likely complexity, the law, the amount of oral evidence that is required, the importance of the claim, the views expressed and the circumstances of the parties. It also deals with expert evidence and refers the court to the proportionality point.
  5. District Judge Atkinson considered all of those submissions and this is very clear from his Order, because this was not just a straight forward tick box allocation as sometimes is the case on a lot of the small claims track hearings. It was a considered allocation because he actually gives a reason for his allocation at the start of his Order. He says:
“The costs likely to be incurred by allocation to any other track would be wholly disproportionate to the sums in issue.”
It is conceded by the Claimants that this is a small value claim. At best it is in the region of £7,500 on the submissions that I have heard today. On the Defendant’s case it is probably under £5,000 but it is certainly well within the small claims track limit. Therefore, there has to be something other than the value pursuant to the allocation directions given by Judge Atkinson that would, in effect, take it out of the small claims track.
  1. What this is, in effect, is a Claim by the claimant for mis-selling of a policy by the Defendant (a bond in this case – an investment) which he says has caused him loss not dissimilar to cases that have been before the courts on PPI in the past which, in the main, have been small claims track cases. Whilst the Claimant’s case is pleaded in vast pages, Mr Varmer, in my view, rightly concedes that this, in fact, is a claim for negligence. Were the Defendant’s negligent in investing (the Claimant is £15,000) in the particular policy that they invested in which, apparently, caused him a loss? Dressed up, I believe, it does look complex but getting to the nitty gritty, it is simply that.
  2. The court, when considering reallocation, having had a considered allocation decision made, (which I cannot find that Judge Atkinson’s decision was anything other than that), Miss Skittrell, on behalf of the Defendant, reminds the court that CPR 26(10) is the Rule governing reallocation. The notes in the White Book says:
“There has to be a good reason to reallocate and Judges have an unfettered discretion.”
In 11.2 of the Practice Direction to Part 26 it says:
“Where there has been a change in circumstances since an order was made allocating the claim to a track, the court may re-allocate.”
Quite clearly here there is no change in circumstance that has been argued on behalf of the Claimant, nor has there been any good reason why this claim should be re-allocated other than to the track it has been re-allocated to?
  1. I fail to see, despite Mr Varmer’s excellent advocacy, that there is anything more today that was not available to the court when Judge Atkinson considered the matter and allocated to track. Mr Varmer has extended his case about expert evidence that is not, per se, in the application but it was in the directions questionnaire filed by the Claimant and a matter that Judge Atkinson did not consider to be crucial to this issue. When one looks at the matter, overall and the overriding objectives here, which Judge Atkinson clearly had in mind when dealing with the allocation – which all Judges have to – we have to deal with cases in ways which are proportionate. We have to deal with cases justly and we have to deal with cases expeditiously and fairly, allotting to it an appropriate share of court resources. The amount involved is clearly well within the small claims track here. To quote Judge Atkinson:
“Costs incurred in any other track would be wholly disproportionate to the money involved.” The importance of the case and the complexities of the issues are other matters, to which the court has have regard, when looking at it justly and at proportionate cost.
Clearly it is important to Mr Williams to get his money back. That is not the issue however, this case has not got overriding importance, as far as I am aware, to the world at large. Each case will depend on its own facts and, in this case, it will be important to Mr Williams quite clearly.
  1. The complexity of the issues: I think I have already dealt with. Saving expense: The small claims track, clearly is a claims track where the court seeks to save the parties’ expense and it has the added advantage, of course, of offering the parties a free mediation service. The courts always bear in mind cases which are, as this is, and,
indeed, as was referred to by in Judge Atkinson in his Order, capable of settlement through such a free mediation service. That would cost the claimant nothing. There are alternatives which Mr Varmer says, of course, the Claimant is not obliged to embark upon, e.g. the FOS. However, of course, the parties are obliged, when a Judge directs mediation, to give that very careful consideration. Therefore, keeping the parties on an equal footing through that mediation service is something, of course, the court also had in mind.
  1. In terms of the presentation of the evidence there are other means available, apart from a CFA, to the Claimant of course, but the court is and, as Judges, we are, regularly faced with litigants in person and we try to ensure at all costs that the parties are helped through any difficulties that they may face in such a hearing. However, it is very simply the Claimant’s evidence on this point which he will give, and the Defendant’s evidence on this point which they will give, and the court will make a determination. We have negligence claims before the court on a regular basis. The court understands the principles of negligence and can, in fact as in this case in my view, work out any loss, as Judge Atkinson has indicated, without the need for expert evidence.
  2. Therefore, as far as this court is concerned, I can see no reason to sit as a Court of Appeal from my fellow Judge in terms of allocation, bearing in mind all the representations were available to him at the time of allocation, and they have simply been repeated today.

RELATED POSTS ON ALLOCATION

One comment

  1. Dominic Cooper · · Reply

    But this raises an interesting point, actually, one which I have always wondered about.

    If an order is made without a hearing (whether an Allocation order or any other one), is the correct mode of challenge an appeal, or to apply to set it aside? Certainly PD 26 para 11.1(3) suggests make an application.

    But if that is so, why is the DJ in this case referring to para 11.2, and why does she say in her judgment at para 11 that she will not act as the “Court of Appeal” (presumably he means County Court circuit judge)?

    Indeed is it possible to appeal a decision made without a hearing?

    The reasoning of DJ Stamenkovich leaves a lot to be desired. In short, because another DJ made a decision, and becuase there was no evidence or submissions “that was not available to the court when Judge Atkinson considered the matter and allocated to track”, then that is that. It rather seems to be an abrogation of the obligation upon the judge to hear the evidence and submissions and reach a decision.

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