Liverpool 2 Salford 0: putting to rest the Salford Factor

On Friday 6th December 2013, His Honour Judge Wood QC, handed down a reserved judgment in two conjoined appeals, the cases of Alty and Huligan wherein he allowed the Claimant’s appeals against allocation to the Small Claims Track and re-allocated the claims to the Fast Track.

The cases had been delivered to Salford for issue, before 1st April 2013, but were only issued by the court after 1st April 2013.

The full text of the judgment is produced below.

Introduction

1.By virtue of the Civil Procedure (Amendment) Rules 2013 the small claims track limit was increased from £5000 to £10,000 for all claims which were issued after 1st April 2013. This apparently simple and straightforward amendment epitomised the spirit of the civil justice reforms to make access to justice less costly by bringing a very large number of lower value claims into the small claims jurisdiction where costs for the most part are irrecoverable.

2. Anticipating the changes, and the effect which they would have on their businesses which depended upon costs recovery, a number of claimant solicitors involved in smaller value RTA claims, usually pursued on a no-win no fee basis, took steps to issue as many claims as possible, utilising the bulk issue centres of Northampton and Salford. Claims were sent to the Salford Centre and date stamped before the cut-off date of 1st April, but many, undoubtedly because of the pressure of work faced by the centres, were not actually issued until after 1st April 2013.

3.On the face of it, therefore, the amendments to the rules applies for all those cases issued after 1st April 2013, and claims which have a value of less than £10,000 (subject to CPR rule 26.8) are allocated to the small claims track. Thus, solicitors who were hoping to avoid the loss of costs recovery by sending their cases before the cut-off date, only to find that they were issued after that date may have missed out.

4.Their dilemma lies at the heart of these two conjoined appeals from local district judges, both of which address the same question, and that is whether or not such proceedings should be allocated to the fast track, even though the normal rule, by virtue of the extension of the small claims track limit, would be allocation to that track. In each of the two cases permission to appeal was granted by the district judge at first instance.

Background

5.It is appropriate to consider the facts of both cases in brief outline even though they are remarkably similar.

6.In Alty v Vambe  the statement of Denise Pickersgill sets out the procedural history. The collision between Mr Alty’s unoccupied and parked vehicle and the defendant’s vehicle  occurred in January 2013. Liability was never in dispute. Even though the pre-accident value of the car was some £500, a significant credit hire claim in excess of £7000 was pursued. Storage charges of £891 meant that the claim was just over £8000, which justified the fast track allocation prior to the rule change on 1st April. Thereafter, under the £10,000 extension, the claim would have to proceed in the small claims track.

7. The Appellant’s solicitors, Armstrongs, were clearly aware of the rule change, and sought to avoid the effect of the new rule by sending the proceedings to the Northampton County Court by special delivery on 26th March 2013. Since the centralisation of the court issue process for all money claims, whereby parties no longer apply at local County Court counters attending with the papers and an appropriate fee in a cheque made out to the HM Paymaster General, Northampton is the principal bulk issue centre, although for reasons which are not entirely clear much of the work is processed also in Salford County Court. On 28th March 2013 the claim was received at Northampton, and this date was endorsed upon a form called a “notice of issue for an unspecified amount”.

8.However, although in the hands of the Court Service, the claim was not actually issued until 8th April 2013, and service was effected by Armstrongs on 15th April when it was sent by first class post to the defendant/ Respondent.

9.The Respondent did not file an acknowledgement of service or defence, and judgment was obtained in default. Thereafter, the court of its own motion listed the matter for a disposal/directions hearing on 15th August 2013 at which hearing the Appellant’s solicitors sought allocation to the fast track. Deputy District Judge Benson who dealt with the case on that day concluded that the matter should be allocated to the small claims track, as the issue date was affected by the new rules. He was not persuaded that CPR practice direction 7A 5.1 which interpreted the issue date as co-extensive with the receipt of the claim form in the court office for the purposes of the Limitation Act which required a claim to be “brought” by a particular date, was of any application. He did not find himself able to interpret the rules in any other way. His short judgment did not indicate whether he believed that he had a discretion and if so whether he had applied that discretion. He gave permission to appeal.

10.In the case of Huligan v Farragher, the statement of Vicki Usher of 14th August 2013 provides the procedural history. Again Mr Huligan was the owner of a parked vehicle, this time struck by another vehicle in Birkenhead on 5th January 2013. Accordingly the claim was for pecuniary loss only, and this comprised hire charges of just under £5000, repairs of £3653.82 and miscellaneous expenses of £50. There was some negotiation with the defendant insurance company leading to part payment of the repair costs, but prior to the commencement of proceedings, the VAT remained outstanding, as did the hire charges and the miscellaneous expenses, making the claim in total £5609.42.

11.On this occasion the court proceedings were sent to Northamptonby special delivery on 27th March 2013. The date recorded on the notice of issue form for receipt was 28th March 2013. It is to be noted that 29th March was Good Friday and 1st  April Easter Monday. The proceedings were not actually issued until 5th April 2013 some nine days after they had been sent to the court. It should also be observed that although the received date was the same as in the Alty case, issue was effected some four days earlier, suggesting that the system in the court office was not necessarily based upon priority being given to cases by reference to the received date.

12. In this case, the disposal/directions hearing was set for 15th August, and the matter came before Deputy District Judge Humphreys Roberts. There was no formal judgment provided by him, as this was only a short ten minute hearing, but the full transcript is available of the exchanges between counsel, and therefore it is possible to see what arguments were pursued, and how the learned deputy district judge dealt with them. As in the Alty case, significant reliance was placed upon practice direction 7A 5.1 to equate the broader definition of issue for the purposes of limitation with issue generally when the date was central to a rule change. The deputy district judge did not believe that the practice direction was applicable, but rather was confined to limitation situations only.

13.He was further asked to consider exercising his discretion in relation to allocation by reference to CPR rule 26.8. However in the alternative and in a departure from the argument which was being advanced by Vicki Usher in her witness statement, which was to the effect that the discretion could be exercised broadly on the basis that the proceedings had been delivered to the court centre several days before the 1st April 2013, Mr Sellars of counsel who appeared at the hearing narrowed his submission to the factor set out at CPR 26.8 (g) and argued that because of the importance of the proceedings to the Ministry of Justice (in fact HMCTS) which faced  potential litigation for “not issuing in time“, there was sufficient justification for departing from the normal rule and allocating the matter to the fast track. The deputy district judge declined to do so, and the matter was allocated to the small claims track. However he granted the Appellant permission to appeal.

14.At the outset of this conjoined appeal hearing, the court was handed some correspondence between the Court Service and another firm of solicitors, which highlighted the problem faced by a delay in issue following receipt of papers. The Claimants/Appellants were seeking to rely upon this material as fresh evidence demonstrating the approach of HMCTS, by the fact that receipt date was considered to be important. I declined to allow this evidence, and accordingly the appeals were dealt with on the basis of the evidence in the appeal bundles.

The relevant provisions

 

15.       By virtue of CPR 26.5 the court must allocate a claim to a track once a defendant has filed an allocation (now directions) questionnaire, or when the period for filing the questionnaire has expired, whichever is the sooner. Here the allocations were determined at the respective hearings, although in many instances the allocation will take place as a paper exercise, on the filing of the DQ. CPR 26.6 defines the scope of each track in the following terms (I set out the relevant parts only):

 (1) The small claims track is the normal track for–

(a) any claim for personal injuries where –

(i) the value of the claim is not more than £10,000; and

(ii) the value of any claim for damages for personal injuries is not more than £1,000;

……………..

(3) Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000.

…………….

(4) Subject to paragraph (5), the fast track is the normal track for any claim –

(a) for which the small claims track is not the normal track; and

(b) which has a value –

(i) for proceedings issued on or after 6th April 2009, of not more than £25,000; and

(ii) for proceedings issued before 6th April 2009, of not more than £15,000.

…………………..

 (6) The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track.

16.Thus there is a clear understanding of the concept of the “normal” track. This is picked up in CPR 26.7, which sets out the general rule for track allocation:

 (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).

(2) The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to the matters mentioned in rule 26.8(1).

(3) Omitted (see below)

 (4)……………………

 

17.Formerly, Rule 26.7(3) allowed the parties to “demote” the case, so to speak, to a lower track. However, in the absence of consent, the court had no discretion, once a value had been exceeded, to do this. The effect of the rule change implemented from 1st April 2013, in addition to increasing the small claims limit, removed the ability of the parties to consent to a downwards demotion. Thus for those claims issued after 1st April 2013, the court has a more limited discretion once the limit for the particular track had been exceeded by the value of claim but to allocate to the higher track.

18.It would be helpful here to interweave the variation to the rules in the Civil Procedure (Amendment) Rules 2013. The relevant amendments are set out at Rule 8:

(f)in rule 26.6, in—

(i)  paragraph (1)(a)(i); and

(ii) paragraph (3),

for “£5,000” substitute “£10,000”;

(g)omit rule 26.7(3)……

19. The transitional provisions are at Rule 22, and the relevant section which provides the applicable date for the amendment commencement to the small claims track increase appears at 22(3).

(3) The following amendments do not apply to claims issued before 1 April 2013

(a) the amendments made by rules 6, 8(f) and (g), 9(a) and 19 of these Rules;….

20. The balance of CPR Part 26 remains unaltered, including the relevant matters for consideration by the court in the exercise of its discretion set out in 26.8 in the following terms:

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;

(b) the nature of the remedy sought;

(c) the likely complexity of the facts, law or evidence;

(d) the number of parties or likely parties;

(e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it;

(f) the amount of oral evidence which may be required;

(g) the importance of the claim to persons who are not parties to the proceedings;

(h) the views expressed by the parties; and

(i) the circumstances of the parties.

(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;

(b) any claim for interest;

(c) costs; and

(d) any contributory negligence.

21. Practice direction 7A which is to be read in conjunction with part seven “how to start proceedings – the claim form” has at 7 APD  5.1 the following provision:

“Proceedings are started when the court issues a claim form at the request of the claimant (see Rule 7.2)… but  where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any of the relevant statute, on that earlier date…”

The arguments

22. Although it was a significant part of the representations made in both cases to the respective deputy district judges that Practice Direction 7A PD 5.1 was crucial in the construction and definition of the term “issue” in the Civil Procedure Amendment Rules, (Transitional Provisions) thus enabling the court to say that there was no difference between  “bringing” and “lodgement of the claim in the court office” for the purposes of issue, that argument is no longer pursued by Mr Hogan of counsel who appears for both Appellants. He is not now asking the court to construe the Civil Procedure Amendment Rules on such a broad basis, but instead relies upon the scope of the court’s discretion in Rule 26.8 and the general rule for allocation in 26.7 in the unusual circumstances which apply in these cases and contends that whenever lodgement had occurred in time, that is before 1st April 2013, even if this was as close to the day before as it was possible to be, this was sufficient to enable the court to exercise that discretion.

23.He submits that in the absence of any indication by the deputy district judges that consideration had been given to this as a factor to be applied under CPR 26.8 (and indeed where neither district judge appears to have regarded himself as having such a discretion) this court is not restricted to the usual approach on appeals where it has to be shown that the decision was outside the reasonable parameters of any discretion. In other words, the appeal court can approach the matter afresh, if lodgement of the claim in time is a matter relevant to discretion.

24.Mr Whalan for the respondent does not disagree with the appeal approach, although he is  not prepared to accept unequivocally that the district judges, especially Deputy District Judge Humphreys Roberts, did not exercise a discretionary consideration. He accepts that from the short peremptory judgment of Deputy District Judge Benson it is difficult to come to such a conclusion.

25.Mr Hogan’s main argument is predicated upon the approach of the Court of Appeal over a number of years, largely in the context of limitation cases, where it has ensured that a party which had taken every step to ensure compliance with procedural deadlines and statutory time limits would not be prejudiced by the failure of the court administration to undertake the necessary steps to issue. In other words where the matter was outside the hands of the claimant and his legal representatives, fairness demanded that the risk to a claimant should stop at the door of the court.

26.He submits that this line of authority is analogous in two respects, first because it deals with the question of default by the court in respect of issue when a time limit is crucial and  whereby a litigant might be prejudiced, and second because it raises this as a relevant factor when considering a procedural discretion. He relies on the case of Barnes v St Helens Metropolitan Borough Council [2006] EWCA Civ 1372 as seminal, a decision which was affirmed in the later case of Page  & Page v  Hewetts Solicitors [2012] EWCA Civ 805, and the principle that wherever a litigant has done all in his power to comply with time limit requirements and to set the justice process in motion, but loses out because of the whim of the court office, there should be a risk apportionment which means that the litigant is not responsible for the “shortcomings” of the court.

27.Mr Hogan refers to other factors which he says are relevant in the overall exercise of the discretion. The respective litigants had a legitimate expectation (a principle which he unashamedly borrows from public law) that invoking the court process at a certain point in time before a rule change would allow him to have the advantage of the old rule. The claimant who faced a risk of not recovering his costs, after incurring liabilities for certain aspects of his solicitors costs, notwithstanding signing up to a conditional fee agreement (disbursements and ATE premium), may wish to think twice before embarking upon such a course. Further, if a claimant in such circumstances was restricted to the small claims track, thus losing out financially, his only resort would be to be speculative financial remedy of a claim against the HMCTS. He relied upon the comments of Lord Bingham in the case of Barr v Barr [1994]  PIQR P45.

28.On behalf of the Respondents, Mr Whalan invited the court to construe the amendment rule strictly, where the date of issue is the relevant point of reference. He refers to the fact that the rule drafters provided terminology which was deliberate, distinctive and unambiguous, and this should be a decisive factor. In other instances in the transitional provisions, terminology such as “commenced” or “received before” are used elsewhere, and if it had been intended that a litigant should not be prejudiced by the uncertainty of the court issue process, such a term could have been used for the rule change cut-off date. The discretion which remained vested in the court applied only to those cases where there was something novel which took the case out of the usual, otherwise the normal rule should be applied.

29.He referred to the fact that the rule change had been widely publicised, and it was incumbent upon a claimant representative to ensure that any proceedings which were to be issued were lodged well in advance of any cut-off date, to allow for the unpredictable process. Here the appellant solicitors were not beyond criticism, after leaving the delivery of the claims until only a matter of days before 1st April 2013. Both the claims were of modest value, representing for the most part hire charges, and were likely to be capable of easy resolution with straightforward evidence on quantum.

30. He did accept that it was impossible to exclude a discretionary allocation to the fast track in some instances where a party had done all in his power to get the claim to court to guarantee issue by a certain date, and where no blame could be said to attach. However he declined to provide any date in the present circumstances in respect of which such considerations might apply. Thus, insofar as a discretion may be retained, he was at the opposite end of the spectrum to Mr Hogan, implying that the period between lodgement and issue would have to be substantial before a discretion could apply, as opposed to the submission on behalf of the Appellants to the effect that there was no discretion at all, as long as the claim was lodged on the correct side of the cut-off date.

31.The authorities relied upon were limited to circumstances of limitation expiry, and could be distinguished in that they affirmed a litigant’s benefit to the full extent of any limitation period, by which he should not be criticised if he complied with the requirement to bring these proceedings in time, even if this was only literally hours before the limitation period expired. The current rule change was largely administrative, and not intended to bestow on or remove from the respective litigants any particular benefits. Its purpose was to ensure a more cost effective and managed civil procedure.

Discussion

32.  The issue in this appeal highlights an apparent tension between the worthy principles underlying theJackson civil justice reforms, namely more accessible, efficient and affordable civil justice, and the potential for unfairness arising out of a disadvantage to litigants who had prepared and presented their cases believing they would be dealt with under the pre-existing rules.

33. There is no doubt that amongst many other rule changes the increase in the small claims track limit was well-heralded, and although the rules were formulated and implemented over a short period of time, most claims litigators, and particularly those likely to be significantly affected, (the RTA “no win no fee” solicitors dealing with large numbers of low value claims) were well aware of the need to ensure that claims were issued before the rule change took effect.

34. It is axiomatic that in the vast majority of cases the issue date of any proceedings will be important in two respects. First of all, it will set the procedural ball rolling, invoking the court’s jurisdiction to deal with the case by way of management after the papers have been served on the defendant, and to arrange the imposition of time limits etc. Second it will be the reference date, subject to the practice direction at 7A 5.1, for the purposes of limitation. It may also be relevant as an anchor point in time where it is alleged that a party has been guilty of delay in the prosecution of the claim, although this arises less these days with robust case management.

35.Occasionally, as here, where there have been significant rule changes, the issue date assumes importance as a finite point in time for the applicability of any new rule. Accordingly, and in the absence of transitional provisions which deal specifically with the question, the considerations of construction of the issue date will be transient and unique to the purpose for which the rule was implemented. In other words it is unlikely to arise again in any other context.

36.As a cut-off point, the issue date of any set of proceedings is perhaps the most obvious and finite because it is a date established in the court records. As is plain from the various authorities referred to, use of an expression such as “started” or “brought” or “commenced” is less finite and could arise from a unilateral step in the proceedings, as opposed to the “transactional” step of the court process in issuing. For this reason alone, it seems to me that the appellants were quite right to abandon any argument in relation to construction of the amendment rule by reference to CPR APD 7.51. The new rule must apply to any claim where the notice of issue is dated 1st April 2013 or later. That means, by reference to the existing rules, that the normal track for allocation of any claim with a value of less than £10,000 will be the small claims track, and thus on the face of it both these claims would normally be allocated to that track.

37. The specific question for this appeal, therefore, is whether a discretion in principle could exist to allocate to the fast-track, notwithstanding that the circumstances relied upon here, namely a delay by the court in issuing following receipt of the claim, does not fit comfortably within the matters usually taken into account if allocating other than to the “normal” track under 26.8 and if it does, how that a discretion should be exercised.

38.As I have indicated, Mr Whalan on behalf the Respondents does not seriously challenge that a discretion does arise, as the word normal does not imply exclusivity, but contends that it is one which is significantly circumscribed and limited to the most exceptional cases. In this regard, as I have indicated, although he seeks to infer some discretionary application by both the deputy district judges at first instance, I am satisfied that neither district judge addressed his mind to the question of court delay allowing a discretion to allocate to other than the normal track, in other words the fast track. Probably because the applications were not argued on the basis that court delay was a relevant factor, the learned deputy district judges confined themselves to consideration as to the construction and interpretation of the amendment rule, particularly by reference to CPR 7.5 APD 5.1, and in this respect they cannot be criticised. Accordingly as an appellate court I can exercise the discretion afresh.

39.For this purpose I have considered whether or not any helpful principles can be derived from the cases relied upon by the Appellants and the principle of risk allocation, where a litigant has done all he possibly can do to avail himself of the protection of any court rule or any statutory provision creating a time bar.

40.Although practice direction 7.5 APD 5.1 was undoubtedly formulated to deal with the ratio of the Court of Appeal decision in Barnes, it seems to me that this line of cases does demonstrate a trend in which the appellate courts have endeavoured to ensure fairness for the blameless litigant who has been subject to the whim and uncertainty of the courts bureaucratic process.

41.The most recent in this line of authorities is the case of Page, where Lord Justice Lewison provided the main judgment and reviewed many of the previous authorities. The case involved allegations of professional negligence against a firm of solicitors and a legal executive employed by them, brought by the administrators of the estate of an elderly couple who had been poorly advised in the disposal of the property of the estate and where a potential conflict of business interest had arisen on the part of the legal executive. Because part of the action was for an account which had to be brought within the statutory time limits for the duty giving rise to the account (essentially six years), an expiry date of 6th February 2009 arose. There was evidence before the court that the proceedings had been delivered to the court office for issue in December 2008, whereas the date on the claim form was 17th February 2009. Thus a dispute arose as to whether or not the action was time barred by reference to the issue date on the claim form.

42. It was questioned at first instance whether or not the original proceedings which may have been lost between delivery and receipt by the court office could be the same claim as that which was eventually issued. The first appellate judge held that it could not, but the Court of Appeal (Lewison LJ) disagreed, holding that the proper question whenever the Limitation Act issue arose, was not the construction of the CPR or the practice direction, but the meaning of the Act, and in this context it was the “bringing” proceedings.

43.After citing with approval the judgment of Tuckey LJ in Barnes v St Helens Borough Council to the effect that delivery of proceedings to the court office is sufficient for the purposes of “bringing” proceedings, Lewison LJ went on to consider the policy which lay behind that decision, and made more general comments at paragraph 33:

“However, literalism is not fashionable, so it is also necessary to consider the policy that underpins the decision. Tuckey LJ dealt with this too. He pointed out that this meant that a claimant had the full period of limitation within which to “bring” his claim; and that it would be unjust if he had to take the risk that the court would fail to process it in time. It does not seem to me that the reason why the court fails to process the request in time alters the justice of the case. If it is unjust for the claimant to take the risk that the court staff are on strike, it seems to me to be equally unjust for him to have to take the risk that a member of the court staff might erroneously put his request in the shredder or the confidential waste, or that his request is destroyed by flood or fire in the court office, or is taken in a burglary. Each of these might be reasons why the court failed to process the request in time. Essentially the construction of the Act that this court favoured in Barnes v St Helens Metropolitan Borough Council is based on risk allocation. The claimant’s risk stops once he has delivered his request (accompanied by the claim form and fee) to the court office. PD 7 cannot, in my judgment, alter the correct construction of the Act.”

44. He went on, further, to cite with approval the judgment of Eveleigh J in the case of Aly v Aly (January 1984) another case concerned with limitation expiry:

This is not a new approach. In Aly v Aly(1 January 1984), which also concerned time limits in the context of limitation periods, Eveleigh LJ said:”It would be indeed surprising and harsh if a party who had done all that was required of him, should find himself unable to obtain the assistance of the court because the court itself had failed in some matter of procedure. Furthermore, when the rules lay down a time limit which has to be observed by a party to the litigation, their aim is to achieve whatever particular purpose is in mind by controlling the action of the party, and where on the reading of the appropriate rule that seems to be its intention it would be quite ridiculous, as I see it, to make the party responsible for anything that has subsequently to be done by the court. “

45. Whilst these cases were concerned with limitation directly, a similar approach was adopted in respect of a situation which arose under the former RSC, in Riniker v University College of London [1999] WL 47771. In this case the plaintiff, acting in person, delivered a  writ for service to the court office on 28th July 1998 with approaching limitation expiry in mid-August. She had endorsed the writ generally and had been assured that this was satisfactory for issue. However when a clerk in the issue section considered it, she decided that the writ contained a full statement of claim and should have been headed up as such. Accordingly it was returned to the plaintiff, who by then was absent and abroad and the result was that the writ was eventually issued after a flurry of correspondence, but as containing a statement of claim which started the court timetable, contrary to the plaintiff’s intention. However it was by then out of time under the Limitation Act. The plaintiff  persuaded the court at first instance that the writ should have been generally endorsed and not with a statement of claim, but was  unsuccessful in having the issue date altered. The Court of Appeal (Evans LJ) held that the court did have an inherent jurisdiction to alter the issue date and in considering whether the discretion should be applied, he said:

“In my judgment, the court’s power to direct that the writ shall be treated as if it was issued on an earlier date should be exercised in this case. The plaintiff was blameless, and the defendants are not prejudiced if the power is exercised, because the limitation defence which would otherwise be open to them would be wholly adventitious and would result from an error by an officer of the court. There is no reason why the plaintiff should be punished for that error, which she had no means of anticipating when she made her postal application on 25 July with an express reference to the need to avoid delay …”

46. Ostensibly there are two difficulties with the resolution of this appeal issue as I see it. The first is that the cited cases plainly address those situations where a statutory provision or rule was intended to have an obvious consequence in the event of non-compliance. Such provisions were there to regulate the conduct of the litigants and to ensure that the parties were neither advantaged nor prejudiced when a time limit question arose. On the other hand, where a date has been specified for the implementation of a rule change, it is an administrative process, and there is no obvious question of advantage or prejudice.

47. The second difficulty is that this court has received no evidence in relation to the usual time which is taken for the processing of claim forms once they are received in the court office. For instance, whereas formerly a claim could receive an issue date virtually contemporaneously with receipt of the fee over the counter, this is no longer the case with the centralisation of money claims in the bulk issue centres ofNorthamptonandSalford. Further, some claims can now be commenced online, where issue will follow immediately upon automatic validation. (The Electronic Working Scheme and Practice Direction 5C)

48.Therefore, when reference is made to the default of the court office in issuing, there is no measure by which this court can judge the usual period between receipt of proceedings and issue of the claim form. In other words, if there is usually a delay of between one week and ten days between delivery and issue, this could be relevant and not necessarily reflective of fault on the part of the issuing court. Equally, issue on the day of receipt or the day after could also give rise to an expectation on the part of a litigant which might impact upon a subsequent consideration of discretion.

49.One matter of which I can take judicial notice, is that the bulk issue centres are likely to have been inundated with claim forms for process prior to 1 April 2013 as claimants sought to take advantage of the old rules in a number of respects.

50. Despite these difficulties, I have come to the conclusion that the principles derived from the so-called “time-limit” cases referred to above can have some application when considering the discretion to allocate to track in circumstances where a litigant has started the process before a rule change, only to find that the issue takes place after the rule change. The most obvious of these principles is that of risk allocation, where a would-be litigant who has taken the necessary and appropriate steps and can do no more in terms of starting a claim, should not be disadvantaged by the uncertainty, and in some cases failure of the court system in dealing with the issue of the claim.

51.There are several reasons for this conclusion. First, as has been acknowledged in this case, the rule changes were heralded well in advance, and litigants were given an opportunity to organise themselves in preparation for them. 1st April 2013 was the crucial date, and it was plainly the intention of the Rules Committee and the legislators that parties should be able to avail themselves of the former rules, insofar as they were advantageous to them in the period leading up to the change. Some of the rule changes would not have had drastic or far reaching consequences, but were merely regulating the way in which the litigation was to be conducted from that point onwards more efficiently and less costly. Obvious examples are the overriding objective amendment in CPR 1, and CPR 3.9 dealing with relief from sanctions. A gradual changing culture was anticipated.

52.The change which dealt with the small claims track limit increase, on the other hand, was of significant consequence. Accordingly this gave rise to an expectation that it was still possible to have claims allocated to the fast track with a value of less than £10,000 but more than £5000 provided steps were taken to pursue such claims prior to the cut-off date.

53.Second, there is no easy measure by which the conduct of the litigant in starting the process and the contribution of HMCTS to delay between that start and the issue of the claim can be assessed. Mr Whalan, counsel for the Respondents, acknowledged this in answer to my question as to when a litigant might be criticised for the lateness of delivery of a claim in the period leading up to the rule change. Where does one draw the line? If a date of, say, 15th March was taken, could a claimant be criticised if the court office still took three weeks to process and issue? I do not agree that there are some cases where it would be obvious that no responsibility could be visited at the door of a claimant. A system which depends upon a litigant predicting how long it would take for the court to issue his claim is both capricious and precarious, in my judgment.

54.The third reason involves the consideration of the discretion itself not to allocate to the “normal” track. As counsel had pointed out it is not a broad and unfettered discretion, but one which must be exercised within certain parameters. The list of matters relevant to allocation set out in CPR 26.8 is not exclusive of other matters, although it would plainly require some novel feature not covered by that list which would justify not allocating to the normal track. However, the factor set out of 26.8 (1) (i) which deals with “the circumstances of the parties” is sufficiently broad to encompass a situation where a litigant has incurred expense or liability in the expectation that his claim will be dealt with in a particular way, and cannot be criticised for that expectation.

55. Fourth, is the fact that ultimately any discretion has to be exercised judicially, which clearly involves the consideration of the overriding objective. Dealing with cases fairly and justly is central to this, and the appellate jurisprudence is paradigm, particularly on the question of risk apportionment where a litigant has done all that he can to bring himself within the rules but was ultimately dependent upon the actions of others outside his control.

56. Accordingly, in my judgment the lodgement of a claim prior to the cut-off date for a rule change is a matter which the court can take into account on allocation.

57.Exercising the discretion afresh, for the reasons set out above, it is now necessary to consider in both these cases whether the Appellants can justify the allocation of the claims to the fast track, that is not the “normal” track.

58.In this respect, I do not believe that great store can be placed by the points made on behalf of the Respondents that the claims are straightforward, involving principally hire claims which potentially exaggerate their true values. There is no doubt that if these cases had fallen to be dealt with under the previous rules, there would have been no discretion available to the court other than to allocate the fast track. It is unnecessary to make any detailed comment on the fact that litigation solicitors are able to recover costs and in the case of many claims management companies, significant credit hire charges and expense which ultimately is borne by the insurer and passed on to the motorist. These are concerns which undoubtedly the civil justice reforms were designed to address and are unlikely to arise beyond the foreseeable future for a very large proportion of claims with the increase in the limit £10,000.

59. In the case of Alty the proceedings were sent to the court for issue by special delivery on 26th March. This should have involved next day delivery, and therefore there is no obvious explanation as to why 28th March was the recorded receipt date. In any event, 28th  March was a working day when the court office was open (it was Good Friday the following day, and the court was not open again until 2nd April). Absent any clear indication or evidence that the Claimant knew or should have known that issue would not take place until several days thereafter, it seems to me that neither he nor his solicitor can be criticised for the expectation that issue could be achieved before 1st April. However I suspect that no real consideration was given to this possibility, it being the belief of most litigation solicitors that delivery was sufficient for these purposes and the responsibility for issue lay with the court office. Accordingly, I see this as an appropriate case were a discretion to allocate to other than the normal track can be exercised, in this case should proceed in the fast track. On this basis I allow the appeal.

60.In the case of Huligan, the proceedings were delivered a day later (27th March), although still received in the Northampton County Court on 28th March. The same considerations must therefore apply, and exercising the discretion of the court afresh, I allocate this case to the fast track as well, thus allowing the appeal.

61.Quite apart from the fact that this is a unique situation, and only arises because of a rule change with an expressed cut-off date, it seems to me that it is not possible to lay down any specific and clear guidelines by which it would be appropriate to exercise the discretion in other cases, as each must depend upon its own merits. However unlike the limitation cases, where delivery even after the court office had closed but before the crucial date was deemed sufficient, it seems to me that it would be difficult to countenance tolerance to a litigant who did not allow any time for the issue process to take place. In particular, those claims which were delivered to but not received by the court office until after the 1 April 2013 would be outside the parameters of any discretion on this basis.

62.I am conscious that locally a number of cases are awaiting the outcome of this appeal. It raises a novel issue on which there is no clear and direct guidance from the Court of Appeal. It is a matter for an appellate court as to whether these cases raise an issue of sufficient importance for such guidance to be given, and I have no power to grant permission for a second appeal.

63.In any event, it is to be hoped that those cases waiting in the pipeline can now be resolved one way or another, and allocated appropriately. It should follow that if a claim is at the directions questionnaire (DQ) stage, in the absence of any representation on the appropriate form, or a separate application made for an allocation hearing, cases with a value of less than £10,000 are likely to be referred automatically to the small claims track where the issue date is after 1 April 2013.

64.I invite counsel to draw up any consequential orders, including costs, and to submit the same for approval. In the absence of agreement, I will consider representations, and decide whether a further hearing is necessary.

It is not yet known, whether the Defendants will appeal.

Andrew Hogan represented the successful appellants in both appeals.