JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK
In Elias & Anor v Blemain Finance Ltd  EW Misc 15 (CC) HHJ Keyser QC overturned a decision allocation an action to the small claims track. The matter was re-allocated to the fast track.
“… it seems to me that there is a real danger in cases of this sort that issues and arguments that can only be addressed and presented competently by lawyers, to whom perhaps the issue might indeed appear simple if they are experienced at the work, will end up being shunted into the small claims track where litigants in person are not going to be able to present the case”
The claimants brought an action allowing there had been unfair conduct by the defendant when a loan was arranged. The Particulars of Claim estimated the claim to be “up to £21,325.67”.
THE HEARING BEFORE THE DISTRICT JUDGE
The District Judge allocated the matter to the small claims track.
14. Returning to the present case, I have read transcripts both of the full hearing and of the judgment of the district judge. It is unnecessary to cite passages from the transcript of the hearing. In her judgment, the district judge set out the competing contentions of the parties and continued:
“3. The value of the case is not pleaded. The loan that the Court is concerned with I am told was in the region of £26,000. The Defendant says that the value of the case at its highest is likely to be in the region of £4,000 to £4,500. One of the issues in the case is whether the commission in the case was fully secret or not. The Claimants say that this is a fully secret commission case that therefore rescission is available as a remedy as of right and that for various reasons this was an unfair agreement and the Court will have to grapple with what it puts as being:
‘Complex issues to determine the appropriate remedy considering rescission and counter restitution.’
4. The Defendant says that rescission as a remedy is fanciful in this case, that the Court will have to look at all the circumstances, that the borrowing was actually used for consolidation of other loans and that in reality what the Court will be doing is looking at an appropriate remedy probably of damages based on commission and charges most likely in the region of around £2,500. They say this is not a complex matter.
5. I have considered all of these arguments and in particular the question of proportionality. It has come to this Court’s attention that there are a number of these claims waiting in the wings as it were and they are regularly being listed for allocation hearings. My view is that this is a matter that should now be allocated to the small claims track with a time estimate of three hours in accordance with wider practice that as I understand it is developing in response to claims of this nature. I do not agree that there is anything particularly complex about this matter in the way that Mr Smith has sought to argue that it is that would warrant allocation of the matter to the fast track.
6. Given the issues the proportionate way forward is the small claims track. The judges who sit in fast track trials and small claims track trials are the same judges, they will be familiar with the issues and they will be able to deal with those issues. It is not so complex that it would justify a different allocation.”
THE CLAIMANTS’ SUCCESSFUL APPEAL
The claimants appealed the decision to allocate the matter to the small claims track.
THE JUDGMENT ON THIS ISSUE
The Circuit Judge held that the District Judge had erred in failing to consider fully the value being claimed.