St James the Great

Every day in the county court, credit hire claims which are worth more than £10,000 or housing disrepair (housing condition) claims where the value of the repairs exceed £1000 or the damages exceed £1000 are allocated to the Small Claims track.

The focus of the decision on allocation is somewhat contradictory: the value of the case would appear to direct the case to the “normal track” for that type of case, but the judges exercising their discretion, take the view that there is a margin of appreciation open to them and allocate the case downwards.

Conversely securing allocation to the Small Claims track is often enough to stop a claim dead in its tracks: a defendant knows that housing disrepair claims are usually funded by a conditional fee agreement, that when a case is allocated to the Small Claims track the solicitors representing the claimant will terminate their conditional fee agreement, and the claimant will simply not engage with the litigation, letting the case drift to a strike out.

But one point that often is not raised on allocation arguments, perhaps surprisingly, and which could be, given the nature of the clients, is whether they are vulnerable, as defined by the Civil Procedure Rules, with the consequence that the claim should be allocated to the Fast Track, in order to give the claimants a prospect of recovering their costs, so that they will be represented by solicitors.

The overriding objective as now formulated by the Civil Procedure Rules 1998 provides:

(1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

The Practice Direction 1A states so far as is material:

4. Factors which may cause vulnerability in a party or witness include (but are not limited to)—

(a) Age, immaturity or lack of understanding;

(b) Communication or language difficulties (including literacy);

(c) Physical disability or impairment, or health condition;

(d) Mental health condition or significant impairment of any aspect of their intelligence or social functioning (including learning difficulties);

(e) The impact on them of the subject matter of, or facts relevant to, the case (an example being having witnessed a traumatic event relating to the case);

(f) Their relationship with a party or witness (examples being sexual assault, domestic abuse or intimidation (actual or perceived));

(g) Social, domestic or cultural circumstances.

5. When considering whether a factor may adversely affect the ability of a party or witness to participate in proceedings and/or give evidence, the court should consider their ability to—

(a) understand the proceedings and their role in them;

(b) express themselves throughout the proceedings;

(c) put their evidence before the court;

(d) respond to or comply with any request of the court, or do so in a timely manner;

(e) instruct their representative/s (if any) before, during and after the hearing; and

(f) attend any hearing.

6. The court, with the assistance of the parties, should try to identify vulnerability of parties or witnesses at the earliest possible stage of proceedings and to consider whether a party’s participation in the proceedings, or the quality of evidence given by a party or witness, is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make directions as a result.

7. If the court decides that a party’s or witness’s ability to participate fully and/or give best evidence is likely to be diminished by reason of vulnerability, the court may identify the nature of the vulnerability in an order and may order appropriate provisions to be made to further the overriding objective. This may include concealing the address and/or contact details of either party or a witness for appropriate reasons.

The criteria relevant to allocation include in rule 26.13(1):

26.13.—(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 additional 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.

In the case of Santiago v Motor Insurers Bureau [2023] EWCA Civ 838 the Court of Appeal had this to say about vulnerability when it ruled why an interpreter’s fees were recoverable, looking at the relevant costs rules through the prism of the overriding objective:

56. By CPR 1.2(b), the Court “must” seek to give effect to the overriding objective when it interprets any rule. The first issue, therefore, is one of principle: does the overriding objective affect the interpretation that we should place upon sub-paragraph (h)? In my judgment it is clear that it does. Even before its amendment, rule 1.1(2)(a) and (d) established the objective of ensuring that the parties are on an equal footing and that the case is dealt with fairly. Now there is the added express obligation on the court to deal with a case, so far as practicable, so as to ensure that “the parties can participate fully in proceedings, and that parties and witnesses can give their best evidence.” It follows that the Court is obliged to seek to give effect to that objective when interpreting subparagraph (h). Subject to the MIB’s submission that the costs of the interpreter are included within the allowance made by Table 6B, it seems to me to be clear beyond argument to the contrary that an interpreter is essential if a person or witness who does not speak adequate English is to participate fully in proceedings or give their best evidence.

And:

58. I reject the MIB’s submission that the question of interpreter’s fees does not involve a question of access to justice. Since the fees of an independent interpreter are not remunerated as part of the fixed fees for the provision of legal services, they are an additional expense that will fall upon the vulnerable party or their solicitor. The MIB is correct to say that we have no evidence of how the question is dealt with in retainers; but it is possible to consider the question in the abstract. If the fees of an independent interpreter fall upon the solicitor, they will act as a financial disincentive to a solicitor who is contemplating whether or not to take on the case of someone who cannot speak adequate English. If they fall upon the vulnerable prospective party, they may have the same disadvantageous effect on her or him, whether they are to be paid up front or from any damages that may be recovered. It is no answer to say that there may be insurance available to the party. We have no evidence about the ease with which or the terms on which such insurance may be available. That being so, the reference to insurance only serves to emphasise the significance of the potential outlay for the individual party. The question then arises: what, if anything, is the difference in terms of access to justice between counsel’s fee for an opinion in a child’s case and the fee of an independent interpreter? To my mind there are two distinctions, which are fine but critical. First, by the time that counsel’s opinion is required, the claim will have settled or settlement will be in the offing, whether proceedings have been issued or not. If there is no opinion the claim can proceed to judgment without impediment and with the parties on an equal footing, or the settlement can be concluded (but not approved by the Court) with the child having the option of adopting or repudiating it on achieving their majority. The child’s access to justice is therefore secured. By contrast, without the services of the interpreter the claimant (or witness) who cannot speak or understand English is precluded from having access to the court that will permit them to participate fully on an equal footing and to give their best evidence. Second, the cost of the opinion is deemed to be remunerated because it is included in Table 6B. By contrast, if the interpreter’s fee is not recoverable as a disbursement, it is not remunerated at all, either actually or notionally.

Many housing dispair claimants will have one or more vulnerabilities as contemplated by Practice Direction 1A: it will be interesting to see whether on allocation hearings their solicitors will put forward evidence explaining those vulnerabilities, and why the case should be allocated to a costs bearing track to enable them to continue to have legal representation and to ensure that they can properly advance their case to court.