Allocation – generally

This next stage of case management begins where a defence has been filed. On receipt of a defence, the court serves each party with an allocation questionnaire. The parties must return it within 14 days and pay a fee. It is desirable that the parties’ lawyers co-operate in the completion of the questionnaires.

The allocation form

The form will ask the parties whether they wish for a stay of proceedings (for up to one month) to try to settle the case without an action in court. The general principle of the Civil Procedure Rules 1998 is for out of court settlement wherever possible. The court will extend the time if any of the parties so requests for a period of four weeks, but further extensions may be granted.

The parties are then asked under the questionnaire which track they consider to be the most suitable for the case. As we have seen, the value of the claim is an important factor. In this connection, where there is a counterclaim, the highest of the value of the claim and counterclaim is taken. Thus, where the claim is for £12,000 but there is a counterclaim for £25,000, the value of the counterclaim governs the case.

Where the allocation questionnaire is not filed

  • The position is broadly as follows:

    • If all parties fail to file. Here the judge will, after the 14-day filing period, order that all claims and counterclaims be struck out unless the questionnaires are filed within three days.
    • If some only of the parties fail to file. Here the court will allocate on the information available, or will call an allocation hearing where more information is required and then allocate the case. A party not attending the allocation meeting may be required to meet the costs of any party who has attended it.

Allocation to track

Claims not exceeding £5,000 will normally be allocated to the small claims track. They will normally be heard in the County Court by a district judge, with appeal only where there is a serious irregularity affecting the proceedings, to a circuit judge unless a circuit judge hears the case when there may be an appeal to a High Court judge. A serious irregularity could exist where the district judge had, e.g., failed to allow a party to cross-examine a witness.

Claims over £5,000 but not exceeding £15,000 will normally be allocated to the fast track where the trial will take place within 30 weeks of allocation. The length of the trial will be no more than one day and there is a cap on lawyers’ advocacy costs.

Where the claim is over £15,000, it will normally be allocated to the multi-track.

However, the track allocation is not purely a matter of the size of the claim and a request can be made at the allocation stage for allocation to a track that is not the normal one. A request for a different allocation may be made by the lawyer representing a party where, e.g., he or she submits that the trial will last for two days because of a counterclaim and the need for oral expert evidence on the matter of liability. This could move a claim for more than £5,000 but less than £15,000 from the fast track to the multi-track.

The case management conference

  • Where the case has been allocated to the multi-track, the court:

    • may give directions as to the management of the case and set a timetable for the various stages to be completed before the trial;
    • alternatively, it may fix a case management conference or a pre-trial review or both to consider matters such as which documents should be disclosed and what expert evidence can be reasonably required. The court will fix a trial date or a period of time in which it is to take place. There is no restriction of 30 weeks as in the fast track cases.

Pre-trial review

A pre-trial review will be necessary in multi-track cases if they deal with complex matters involving numerous parties and/or are likely to last for a significant period of time, to ensure that all conference issues have been dealt with. The judge (usually the trial judge) will consider the updated cost estimates and set a budget and a final programme for the trial, including parameters for its length.

The trial

The parties and their witnesses will assemble for the trial.

Attendance of witnesses

As regards witnesses (except expert witnesses), it is not wise to assume that they will attend voluntarily, and their attendance should be encouraged by service on them of a witness summons. This is issued by the court and it requires a witness to attend court and give evidence or produce documents to the court. It should be served at least seven days before attendance is required. Failure to comply with a witness summons is a contempt of court punishable by fine and/or imprisonment.

Trial bundles and skeleton arguments

Except where the court rules otherwise, the claimant must prepare and file in court a trial bundle not more than seven days nor less than three days before the start of the trial. The bundle will include the documents relevant to the trial such as the claim form and statements of case and witness statements, together with a case summary indicating what points are or are not in issue and the nature of the argument on disputed matters. This summary is referred to in some courts, such as in the Chancery Division, as a skeleton argument.

The contents of the bundle should be agreed between the parties and if agreement cannot be obtained on all of the contents, a summary of points of difference should be included. Either party may, e.g., not agree on the inclusion of a document or documents. Bundles should be supplied for the trial judge, all the parties and for the use of witnesses. The advocates can then refer to the contents of the bundle as required during the trial.