ALLOCATION BETWEEN THE SMALL CLAIMS TRACK AND THE FAST TRACK: WHAT IS MEANT BY "ANY AMOUNT NOT IN DISPUTE"?
In the case of Akhtar -v- Boland  EWCA Civ 872 the Court of Appeal gave guidance on CPR 26 and the matters to be considered when a determination is made as to allocation between the Fast Track and the Small Claims Track.
THE ISSUES WHAT SUMS WERE “IN DISPUTE”.
The claimant claimed damages of £6,392.80 arising out of a road traffic accident. There was no personal injury claim and the prayer damages claimed between £5,000 – £10,000.
The defendant filed a defence (described as “incoherent”) which admitted parts of the claim and pleaded, specifically, that
“For the purpose of allocation, the amount in dispute is £3,866.80 and falls within the remit of the small claims track”.
However this admission was contradicted in later paragraphs of the defence. Later paragraphs put the claimant to proof the terms of hire; proof of impecuniosity; whether another vehicle could be hired; the period of hire; whether the rate charged was reasonable and mitigation of loss.
ALLOCATION TO THE SMALL CLAIMS TRACK
The claim was allocated to the Small Claims Track. The claimant applied for the allocation to be changed. This was refused but the district judge entered judgement for the sum of £2,496 which sums were admitted in his defence. (At that time the small claims track limit for claims of this type was £5,000, it is now £10,000).
THE ARGUMENTS ON APPEAL
The claimant argued argued that the defence was no more than an offer to pay £2,496, it was not an admission that the claimant was entitled to this sum. The arguments on appeal centered on whether the defence consisted of true admissions or whether the sums admitted were contradicted by the later paragraphs in the defence.
THE APPROPRIATE APPROACH TO ADMISSIONS
Sir Stanley Burnton considered the appropriate approach to admissions.
- I begin by mentioning what seem to me to be commonplace propositions concerning admissions and interlocutory judgments.
- Where an allegation made by one party in proceedings is admitted by the other party in unqualified terms, that other party must not, seek to adduce evidence or raise arguments to the effect that that admission is not binding on him. The court has no jurisdiction to investigate a fact that has been admitted, unless the party making the admission obtains the permission of the court under CPR 14.1(5) to withdraw the admission and does so.
- This principle applies even more strongly to a judgment for all or part of a claim. Neither party may adduce evidence or make submissions that if accepted would lead to decisions or findings inconsistent with the judgment, unless there is a successful application to set the judgment aside.
- Where a defendant admits part, and not the whole, of an unliquidated damages claim, the claimant is entitled to judgment on that admission, and to pursue the proceedings to seek and obtain judgment for the balance. Contrary to the claimant’s submission, such a judgment does not extinguish the claimant’s cause of action.
- Where an admission is equivocal, or inconsistent with other allegations in the defence, the claimant may, and should, seek further information or clarification of the defendant’s case under CPR 18.1. If the claimant fails to do so, and the court considers that it is uncertain what are the issues between the parties that fall to be determined at trial, it may itself make an order for clarification, and in an extreme case, where the defence is truly incoherent, the court may strike it out. On an application such as that heard by DJ Fox, if the court is uncertain as to whether an admission is unqualified, or as to its effect, I would expect the court to seek and to obtain clarification from the defendant at the hearing, and for that clarification to be made or confirmed in writing (under CPR 18.1 or in an amended defence).
- In the present case, it is clear that DJ Fox interpreted the defence as including an unqualified admission that the claimant was entitled to the sum of £2,496: hence he entered judgment for that sum. We have the transcript of the argument before the Judge, from which it is clear that initially the claimant made no application to set the judgment aside, and that the defendant accepted that at trial the claimant could not recover less than the admitted sums totalling £2,496. It follows that at trial the allegations in the defence that were inconsistent with the admissions in paragraphs 1 to 5 would be disregarded, and could indeed have been struck out. However, in the discussion after judgment, Mr Dawes, for the claimant, accepted that if the allocation of the claim was changed the judgment would have to be set aside.
- It follows from this that at trial the defendant could not, for example, challenge the entitlement of the claimant to damages for loss of use of his vehicle, or the reasonable need of the claimant to hire a replacement vehicle for a reasonable time and at a reasonable hire charge: for the defendant to do so would be inconsistent with the admission in paragraph 2 (as well as with the judgment). The rate of the hire charge and its duration beyond 21 days would be in issue.
WHAT WAS THE AMOUNT IN DISPUTE?
The court then went on to consider the amount in dispute bearing in mind the admissions.
CPR 26 fell to be applied to the proceedings after the claimant had obtained his judgment. CPR 26.7 and 26.8 provide, so far as relevant:
(1) In considering whether to allocate a claim to the normal track for that claim under rule 26.6, the court will have regard to the matters mentioned in rule 26.8(1).
Matters relevant to allocation to a track
(1) When deciding the track for a claim, the matters to which the court shall have regard include –
(a) the financial value, if any, of the claim;
(c) the likely complexity of the facts, law or evidence.
(2) It is for the court to assess the financial value of a claim and in doing so it will disregard –
(a) any amount not in dispute;
- Once the court had determined that the defendant accepted that the claimant was entitled to judgment in the sum of £2,496, the only sum in dispute was the balance of the claim, which was less than £5,000. This is confirmed by paragraph 7.4(2) of CPR PD 26A. The relevant parts of that PD are as follows:
“7.2 The object of this paragraph is to explain what will be the court’s general approach to some of the matters set out in rule 26.8.
‘The financial value of the claim’
(1) Rule 26.8(2) provides that it is for the court to assess the financial value of a claim.
(2) Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may make an order under rule 26.5(3) directing the claimant to justify the amount.
‘any amount not in dispute’
7.4 In deciding, for the purposes of rule 26.8(2), whether an amount is in dispute the court will apply the following general principles:
(1) Any amount for which the defendant does not admit liability is in dispute,
(2) Any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute,
(3) Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute,
(4) Any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.
It follows from these provisions that if, in relation to a claim the value of which is above the small claims track limit of £10,000, the defendant makes, before allocation, an admission that reduces the amount in dispute to a figure below £10,000 (see CPR Part 14), the normal track for the claim will be the small claims track. As to recovery of pre-allocation costs, the claimant can, before allocation, apply for judgment with costs on the amount of the claim that has been admitted (see CPR rule 14.3 but see also paragraph 7.1(3) of Practice Direction 46 under which the court has a discretion to allow pre-allocation costs).”
- In my judgment, in the circumstances before him, in which the claimant retained the judgment for £2,496, the Judge was entitled to allocate the claim to the small claims track, since the sum remaining in dispute was less than £5,000.
- Mr Weir pointed out that this result meant that many, if not most, of the issues in the case would be those that would have to be decided if the claim had remained in the fast track. That may be so, but it would equally be so if the claim had been for less than £5,000 from the beginning. If a case is too complex for the small claims track, the court may allocate it to another track: see CPR 26.8(1)(c). The present case is not such a case, and it has never been suggested that it is.”
COSTS WHEN A MATTER IS TRANSFERRED TO THE SMALL CLAIMS TRACK
The claimant argued that if the matter was allocated to the small claims track then the judge had no power to make an order for costs and the Court of Appeal had no power to order the claimant to pay the costs of the appeal. They set aside the order for costs made by the circuit judge on the initial appeal. The court held that the allocation to the small claims track meant that the judge had no power to make an award for costs (the judgment is silent on the issue of costs in the Court of Appeal).
A SMALL BATTLE THAT IS PART OF A LARGER WAR
Both parties instructing leading and junior counsel in a case where damages were less than £10,000. The Court of Appeal recognised that the appeal involved disputes of principle.
- Although nominally an appeal between two individuals, in fact this appeal is fought between a credit hire company or credit hire companies on the part of the claimant and a motor insurance company or motor insurance companies on the part of the defendant. It raises issues as to the correct track to which claims should be assigned that are of wide general importance. The essential question is what is meant by “the financial value … of the claim” in CPR 26.8(1)(a) and “any amount not in dispute” in CPR 26.8(2)(a).
- Evidently, it is in the interests of a credit hire company to maximise the financial value of a claim for damages following a road traffic incident, so as to justify the instruction of lawyers and to recover the costs of doing so, and in the interests of insurers to minimise the financial value of a claim below the limit for the small claims track, so that the claimant cannot recover any legal costs of his representation.
THE NEED FOR CLARITY IN DRAFTING DEFENCES
The key point here is that allocation will take place on the basis of the sum that is in dispute. The challenge is for defendants to draft defences that are not incoherent and set out precisely what sums are admitted. If the sums that are admitted reduce the amount in dispute to less than £5,000 (£10,000 in contemporary cases) then, ordinarily, the action will be allocated to the Small Claims Track.