TRANSFERRING A CASE FROM THE PROTOCOL TO PART 7: THE APPROPRIATE TEST CONSIDERED

September 27, 2022 · by · in Appeals, Case Management, Civil evidence, Civil Procedure

I am grateful to Jamie Carpenter KC for sending me a copy of the judgment in The London Borough of Islington -v- Borous [2022] EWCA Civ 1242, a

The case was looked at yesterday.  Here I want to consider the specific issue of transferring a case from the Road Traffic Protocol to Part 7.  The significant point here being that the Court of Appeal stated that the white book note on this issue was incorrect.  The court has a more general discretion and is not necessarily confined to “exceptional cases”.  We therefore re-visit, the Court of Appeal decision in Phillips v Willis [2016] EWCA Civ 401 to see what was actually said about the question of transfer.

 

“I should, however, point out that there can be cases where, as a consequence of paragraphs 4.6, 6.4(1), 7.43 and 7.44 of the protocol, claims are proceeding under the protocol which involve very high car hire charges. Such cases might involve complex issues of law or fact which are not suitable for resolution at a Stage 3 hearing. I need not speculate what orders the court might make in those cases. Suffice it to say that the case before us is not such a case.”

THE PRACTICE DIRECTION

Section 7 of PD 8B. This relates to Stage 3 of the process.

7.2. Where the court considers that —

(1) further evidence must be provided by any party; and

(2) the claim is not suitable to continue under the Stage 3 procedure,

the court will order that the claim will continue under Part 7, allocate the claim to a track and give directions.

WHAT WAS SAID IN BOROUS

There are two paragraphs of the judgment that are directly relevant.

35. The editorial note in paragraph 8BPD.7.1 of the White Book says that Phillips v Willis [2016] EWCA Civ 401; [2017] RTR 4, ‘illustrates that transfer out of the Protocol Stage 3 procedure to Part 7 will be rare and for exceptional cases only’. The parties in appeal 2 submitted that that note is not accurate. I will return to that note at the end this judgment (paragraph 156, below).
156. I consider that the note (see paragraph 35, above) is not an accurate statement either of the actual decision in Phillips v Willis, or of its implications. The power to transfer cases to Part 7 is not constrained in the way that the note suggests.

 

THE ARGUMENT IN RELATION TO TRANSFER IN BOROUS

In Borous the Court of Appeal considered the argument that transfer was possible. (In the event, however this argument was wholly academic as neither party had sought transfer below and the argument could not properly be raised on appeal).

 

129. If that was not right, CJ2 should have held that the claim was not suitable to continue under PD 8B, and should have transferred it Part 7 (pursuant to PD 8B paragraph 7.2). Nothing in Phillips v Willis prevented CJ2 from doing so. Jackson LJ did not hold that cases can only be transferred into Part 7 in ‘rare’ or ‘exceptional’ circumstances. That test is stated in paragraph 8BPD.7.1 of the White Book, but that is a gloss on the language of PD 8B and of Jackson LJ, and may be misleading judges who would otherwise transfer claims into Part 7.
130. In any event, Phillips does not establish a high bar for transferring a claim to Part 7 under paragraph 7.2. It should also be distinguished, on two grounds.
i. One of Jackson LJ’s concerns about such a transfer was that it might mean that a claimant would not be able to recover some costs. That concern does not arise under the current version of the RTA Protocol, and would not, therefore, have arisen in this case.
ii. The dispute in Phillips was very limited. The defendant was not alleging impecuniosity, the parties were only some £460 apart and were both content for the district judge to decide the claim at the Stage 3 hearing.

 

WHAT WAS SAID IN PHILLIPS

In Phillips v Willis [2016] EWCA Civ 401 Jackson LJ considered the discretion and the judgment does not give rise to the restriction suggested in the note.  Rather it was recognised that there may be cases where the matter could properly leave the Protocol.  These were not defined. However there is no indication that these needed to “exceptional cases only”.

 

    1. There has been some debate as to the circumstances in which paragraph 7.2 of PD 8B might apply. We do not need to decide that question today. I should, however, point out that there can be cases where, as a consequence of paragraphs 4.6, 6.4(1), 7.43 and 7.44 of the protocol, claims are proceeding under the protocol which involve very high car hire charges. Such cases might involve complex issues of law or fact which are not suitable for resolution at a Stage 3 hearing. I need not speculate what orders the court might make in those cases. Suffice it to say that the case before us is not such a case.