Case allocation Flashcards
Comfy Furnishings Ltd designed, made and delivered a 3-piece suite to Nick for a price of £2,000. Unfortunately, the sofa was defective as it was not filled with flame retardant foam. A candle was left unattended which caused the sofa to catch fire. This caused damage to Nick’s house (which he owns) in the sum of approximately £10,000.
In addition, Nick suffered serious burns whilst trying to put out the fire. It is estimated that Nick’s general and special damages will be in the region of £22,000 combined (including the aforementioned damage to Nick’s house). There are a number of extremely complicated issues in dispute including the extent of Nick’s injuries, whether the damage would have been caused regardless of the lack of retardant foam and the value of the damage to the property. Both Nick and Comfy Furnishings Ltd want expert evidence from a plastic surgeon, an expert in flame retardant materials and a property surveyor. You are to assume the court has granted permission for each party to rely on expert evidence from experts in each of these three specialisms, as the judge indicated it was clearly in the interests of justice to do so.
Whilst it is a matter for the court, when considering allocation to track, to which track is the court MOST LIKELY to allocate this claim in your view?
There is no normal track for this type of claim.
The multi-track.
The small claims track.
The fast track.
The multi-track.
This is the MOST LIKELY allocation to track on this specific fact pattern. Although the fast track is the normal track for a claim which has a value of more than £1,000 (as it contains a personal injury claim) but less than £25,000 (See CPR 26.6), in this case each party has an expert in three fields. Under r. 26.6(5) if there is more than one expert per party in more than two expert fields then the case would usually be allocated to the multi-track. In addition, due to the amount of evidence it is on the face of it likely that the trial will take more than one day (see CPR r. 26.6). In addition, the fact pattern states there “… are a number of extremely complicated issues”, (See CPR r. 26.8) and the potential amount of oral evidence, particularly from experts, could be lengthy (See CPR r.26.8). Of course, with a view to practice, ultimately allocation is an issue for the judge to determine and it is possible that she might reach a different conclusion. However, for the purposes of this question, we take the view, for the reasons given, that the multi track is the appropriate answer as “most likely” on this specific fact pattern.
Question 1
The claimant issues proceedings against the defendant for breach of contract arising from
the installation of a heating system in their plant nursery. The claimant claims that, due
to inherent defects within the system, the heating failed to come on at the appropriate
temperature on the night of 23 November. As a consequence, the claimant’s entire stock
of valuable roses died causing losses of £43,000 and damage to their reputation in the
industry. This is disputed by the defendant who submits that the fault lay with the claimant
in its operation of the system. Both parties have instructed experts. The claimant is a multi-
national company whereas the defendant is an individual.
Which of the following best describes the approach the court would take when seeking
to comply with the overriding objective?
A The aim of the court is to deal with the case justly and at reasonable cost. As a
consequence, the court directs that a single joint expert be appointed to deal with
liability.
B The court must manage cases as best as possible and the parties are required to
assist the court in furthering the overriding objective.
C The court will concentrate entirely on the merits of the case and will have no
regard for the difference in status and financial position of the claimant and the
defendant.
D The court will take account of the fact this is a complex breach of contract claim
requiring expert evidence and the level of damages sought is £43,000.
E The court will allocate all the resources the claimant requires to resolve the matter
because of the importance of the matter to the claimant.
Answer
Option D is correct because when deciding the appropriate approach to the matter, the
court will consider the amount of money involved and should also take account of the
complexity of the issues.
Option A is wrong because the overriding objective requires the court to deal with cases
justly and at ‘proportionate’ cost – not ‘reasonable’ cost. Also, it would be more usual for
the parties to instruct separate experts in a case of this value. Option B is wrong because
the court must manage cases ‘actively’ rather than ‘as best as possible’ although the
second part of the statement is correct.
Option C is wrong as one of the objectives that the court should seek to achieve when
dealing with cases is to ensure the parties are on an equal footing with the financial
position of each party being a factor. Option E is wrong as the court will allocate ‘an
appropriate share of the court’s resources’ to the case and not all the resources the
claimant requires. It is, however, correct that the court will take account of the importance of
the case to the parties.
Question 2
The claimant has issued proceedings in the County Court for £24,500 against the defendant.
The particulars of claim state that: ‘The claim is for building work provided by the defendant
which was sub- standard’. The court provisionally allocates the claim to a track. The
defendant completes the directions questionnaire as required and files it at court, but the
claimant fails to file their questionnaire.
Which of the following statements best describes how the matter will proceed?
A The court will provisionally allocate the claim to the multi- track.
B The defendant could apply to strike out the claim on the basis that it discloses no
realistic grounds for bringing the claim.
C The court could grant an order that unless the claimant files full particulars of claim
setting out their reasons for claiming the damages within seven days of service of the
order, the claim will be struck out.
Answer
Between the options provided, Option C provides the best answer as to how the case should
proceed. Option A is wrong as the amount in dispute is less than £25,000 and so the case
will be allocated to the fast track. Option B is wrong because a claim will be struck out if
it has no reasonable (not realistic) prospect of success. Option D is wrong because, in the
circumstances described – a claim for money in the County Court – the claimant’s statement
of case will be automatically struck out if the claimant does not file its directions questionnaire
within seven days.
Option E is not an appropriate way forward (and therefore a wrong answer) because the
court will not automatically impose a sanction. If a party fails to keep to the directions
timetable, the parties should co- operate to ensure they meet certain key dates, such as the
case management conference and the trial. However, if a step is missed, the other party may
apply for an order enforcing compliance and/ or for a sanction to be imposed.
Question 3
A claimant issues proceedings against the defendant, a structural engineering company,
for the sum of £340,000 in relation to the negligent construction of a road bridge. The case
is allocated to the multi- track and a case management conference is listed. The client
telephones for an update and asks for an email to be sent advising them on the litigation
process at this stage of the proceedings.
Which one of the following statements correctly describes what might happen at a case
management conference?
A The purpose of the case management conference is to review the steps the parties
have taken to prepare the case, check their compliance with any directions the court
has made and give directions for the future conduct of the case.
B At the case management conference, if agreement cannot be reached between the
parties, a costs management order will be imposed in every case to ensure that future
costs are kept under control.
C In the multi- track, directions will be tailored to the circumstances of the particular case
and will often include a direction that a single joint expert be appointed.
D The parties must file a costs budget and failure to do so on time will result in the
automatic sanction that the defaulting party’s future recoverable costs are limited to
50% of their actual costs (unless relief is obtained from the sanction).
E If either party has already been sanctioned in their conduct of the litigation, they must
apply for relief from that sanction, but that application can only be heard after the case
management conference, as the conference can only address directions for the future
conduct of the case.
Answer
Option A correctly summarises what might happen at a case management conference.
Option B is wrong, as a costs management order will not be imposed in every case. However,
such an order will usually be made unless the judge is satisfied that the litigation can be
conducted justly and at proportionate cost.
Option C is wrong in that, on the multi- track, it is more common for a judge to grant
permission that each party can instruct their own expert. Option D is also wrong. If either
party fails to file its costs budget on time, the automatic sanction applied is that the defaulting
party’s future recoverable costs will be limited to any court fees that have been paid (unless
relief is obtained from that sanction).
Option E is wrong. If either party has already been sanctioned, an application for relief
from that sanction will usually be heard at the case management conference, provided the
application has been made properly and in good time, and there is time to deal with the
application during the conference hearing itself.
