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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.