Is it just me, or has anyone else missed the fact that para.(3) of CPR r. 26.7 (General rule for allocation) has been deleted?
Previously, CPR r.26.7(3) required the consent of the parties to the allocation of proceedings to a track with a limit lower than the financial value of the claim as assessed by the court under CPR r.26.8.
As of the 1st April 2013, para.(3) stands deleted. It follows that the court can now allocate claims issued on or after the 1st April 2013 to a lower track, notwithstanding that the value of claim exceeds the limit for that track, without the consent of the parties.
Here is a true example of how a credit hire claim valued at over £13,000 ended up on the small claims track:
The claimant obtained default judgment for an amount to be decided by the court. The court then allocated the claim to the small claims track ‘for disposal’, thereby placing the claimant in a position whereby he would have to present his claim for over thirteen thousand pounds’ worth of hire fees at a hearing ‘which will not normally last longer than 30 minutes’ and ‘at which the court will not normally hear oral evidence’ (26PD.12.4), with only small claims track fees to look forward to.
What should you do if you find yourself looking down at an order allocating your £10k-plus claim to the small claims track? First, utter a few expletives, then get your White Book out and refresh your memory as to 26PD.11 (Re-allocation of Claims and the Variation of Directions):
11.1 (1) Where a party is dissatisfied with an order made allocating the claim to a track he may appeal or apply to the court to re-allocate the claim.
(2) He should appeal if the order was made at a hearing at which he was present or represented, or of which he was given due notice.
(3) In any other case he should apply to the court to re-allocate the claim.
Finally, as with any application, be sure to make your application to re-allocate promptly!