The Court Has Allocated My Claim to the Wrong Track – What Can I Do?
If you’re taking legal action or talking to a lawyer about filing a claim, then you’ll quickly come across the concept of tracks in civil litigation.
It’s vital to understand what this means and what can happen if your case is allocated to the wrong track, which does sometimes occur.
This article looks at the current procedure in civil litigation and explains what you can do if you find that your case is incorrectly allocated.
What Does Track Allocation Mean in Civil Court Claims?
Track allocation in civil litigation is a mechanism by which the court streams cases to one of four different procedural routes based on the nature, complexity, and value of the claim.
Why the Court Allocates Claims to Different Tracks
Evaluation and proper allocation enable the optimal use of available resources, benefitting all parties involved in terms of time, cost, and the judicial system.
When Allocation Usually Takes Place in the Court Process
Once the court has received the parties’ pleadings (statements of case), including the defendant’s defence, it assesses the claim. The court then evaluates the complexity and value of the claim and makes a provisional track allocation before issuing a notice of proposed allocation under Rule 26.4 of the Civil Procedure Rules (CPR).
Thereafter, the parties are required to complete a Directions Questionnaire (with draft directions), which will provide the court with more information. Following receipt of this, the court will then confirm the claim’s allocation.
How Does the Court Decide Which Track Your Claim Should Be On?
The court exercises its discretion to determine an appropriate allocation and considers the criteria contained in the CPR.
The Key Factors the Judge Must Consider Under the Civil Procedure Rules (CPR)
Under the CPR, the court must consider several key factors when deciding on the allocation of a claim to a case management track. These factors include the financial value of the claim, the nature of the remedy sought, the likely complexity of the facts, law, or evidence, the number of parties or likely parties involved, the value and complexity of any counterclaim or additional claim, the amount of oral evidence required, the importance of the claim to non-parties, the views expressed by the parties, and the circumstances of the parties.
The court must also consider whether expert evidence is required, as this can influence the track allocation. For example, the need for oral expert evidence at trial is a factor that may lead to allocation to a higher track, such as the fast track or multi-track. Additionally, the court may take into account the interests of justice when deciding whether to allocate a claim to the fast track or intermediate track, particularly where non-monetary relief is sought. In such cases, the court must be satisfied that allocation to the chosen track is just and proportionate.
How Incorrect or Incomplete Information Can Affect Allocation
The court can only allocate based on the information presented before it. Therefore, it’s vital to ensure that all the details in the claim are accurate and complete at the point of submission, including information submitted in the Directions Questionnaire. Willfully providing false and/or inaccurate information may result in cost sanctions, amongst other penalties.
Which Track Should Your Claim Normally Be Allocated To?
Small Claims Fast Track, Intermediate, and Multi Track Explained
The Small Claims Track is for cases typically valued at under £10,000 and covers most disputes. However, specific exceptions apply to personal injury claims and housing repair disputes.
Small Claims features a simplified process, allowing parties to litigate in person without the need for legal representation. The Small Claims Track caps costs at a minimal sum.
The Fast Track is for claims with a value between £10,000 and £25,000, provided they are not particularly complex.
For these cases, there’s usually a Case Management Conference (CMC) at which the court provides directions on the management of the case and suggests a timetable for both parties to follow.
The idea is to streamline the preparation before trial and the trial itself, typically limiting the number of expert witnesses to save time.
The court will usually expect an attempt to have been made to resolve the claim through Alternative Dispute Resolution (ADR), so that’s negotiation, mediation, or arbitration.
The Intermediate Track is a new initiative that came into force on 1st October 2023, following the implementation of the Civil Procedure (Amendment No. 2) Rules 2023.
The Intermediate Track handles claims valued at more than £25,000 but less than £100,000. Costs are fixed in line with an ascending scale which reflects the complexity of the case.
The multi-track is typically reserved for cases that are either complex or have a value exceeding £100,000. Complexity in this context refers to cases involving intricate points of law or evidence, such as those requiring oral expert evidence from more than two experts per party or cases with trials expected to last more than three days. Additionally, claims that cannot be justly and proportionately managed under the intermediate track procedures or involve other factors making them unsuitable for the intermediate track may also be allocated to the multi-track.
When Claims Are Automatically or Unusually Allocated
Some claims are automatically allocated to the Multi Track, including those made under Part 8 of the Civil Procedure Rules (CPR) and claims made in the Commercial Court.
However, most claims are allocated based on the presentation of the facts and the response to them. Allocation can be unusual or even incorrect if the court doesn’t have all the relevant information to make an accurate assessment.
What Can You Do if Your Claim Has Been Allocated to the Wrong Track?
A claimant can ask the court to change the track if they believe the allocation is incorrect.
Steps to Take After Receiving a Notice of Allocation
If you believe that the allocation is wrong after receiving the Notice, you can make a formal application to the court to change it. Re-allocation is not a right and is solely at the court’s discretion.
Making an Application to the Court to Change Track Under CPR 26
The court can change the allocation of a case under CPR 26 at any stage during the proceedings. An application must identify the appropriate track and demonstrate why the original allocation is incorrect.
Invariably, any application will relate to the complexity of the case or the claim amount (or both) and will likely require expert legal representation. The application must be supported by evidence and reasons why the original track is incorrect.
Why Being on the Wrong Track Can Seriously Affect Your Case
Costs, Exposure, and Recovery Differences Between Tracks
One of the most significant impacts of being on the wrong track is the ability to recover costs incurred during the proceedings.
Costs recovery for Small Track claims is limited, so the potential remedy available if a claimant is successful may outweigh the burden of costs incurred during the court process even without legal representation.
The wrong track can also expose parties to more flexible costs orders, but these can carry higher risks and uncertainties.
Everyone is naturally concerned about costs, but they can provide huge leverage and force resolution. If you have a winning case- incurring and seeking recovery of costs can significantly increase pressure on an opponent, including to settle. If you have a losing case, why litigate?
Procedural Complexity Deadlines and Litigation Risk
Being on the wrong track isn’t just about exposure to adverse costs.
A claim can be subject to more onerous case management on a higher track, including complex directions and deadlines, which may also increase the cost of litigation for the parties.
Frequently Asked Questions
Can the Court Change the Track Later in the Proceedings?
In the interests of justice and efficiency, the court may change the track after allocation and during proceedings. This may be because there has been an administrative error during allocation or because the parties have applied to challenge the original decision.
Do I Need to Make a Formal Application to Change Track?
Challenging a track allocation can only be done by making a formal application to the court. Ideally, this should be done as soon as possible to avoid delay and unnecessary costs. You’ll need evidence to show why the original application is incorrect and will likely require the assistance of a lawyer.
Will the Wrong Track Affect My Ability to Recover Legal Costs?
The track determines the rules for costs recovery. The wrong track can limit the costs you can recover, even if you win, and can also increase your costs exposure. Being allocated to Multi Track offers flexibility for costs recovery, but this comes with more complex directions and higher risks and uncertainties.
What if the Court Made an Obvious Administrative Error?
No system is foolproof, and mistakes happen. A clerical oversight or error can result in a case being assigned to the wrong track. Either party may formally approach the court to rectify this, but it will inevitably lead to delays. It’s always important to check that the track is correct as soon as you receive the Notice of Allocation.
Speak to Helix Law About Correcting Track Allocation Issues
An incorrect track has significant implications for the progress of your claim, the costs’ implications, and the risk of litigation. If you are involved in a dispute and claim, our specialist litigation team would love to assist you. We act in hundreds of disputes across the country. Allocation to track is one aspect, but of course you will also want and need to understand your prospects of success, and position yourself to have the best possible prospect of winning at trial. Speak to our commercial litigation team at Helix Law as soon as possible if you’re concerned about your track allocation and we will be happy to assist.
