ALLOCATING BLAME

I wonder whether anyone else has experienced the routine failure of defendant solicitors and the courts to understand the rules in respect of allocation.Around...I wonder whether anyone else has experienced the routine failure of defendant solicitors and the courts to understand the rules in respect of allocation.Around one third of the allocation orders I receive wrongly allocate to the small claims track those cases which are actually appropriate for the fast track.

This is both in respect of order of the courts own motion, and in cases where the defendant solicitor has wrongly indicated that the small claims track is appropriate on the allocation questionnaire.

Many defendant solicitors and district judges base their decisions on part 27.8.

They argue that part 27.8 gives a general discretion to allocate a claim to any track depending on factors such as complexity of issue, law and evidence, number of parties affected etcetera.

However, part 26.7(3) states that the court will not allocate a claim to a track if the financial value exceeds the limit for that track.

Clearly, therefore, part 26.8 is intended only as vehicle to allow complex or wide reaching cases to be allocated to a higher track.

It is not intended to allow the routine allocation of financially significant claims to the small claims track, a fixed costs forum, on the basis that there is nothing groundbreaking about the case.

I have even had to appeal this point, at which time the district judge concerned agreed there was absolutely no discretion to allocate to a lower track.

This situation has become so tediously common that my usually temperate secretary groans at the prospect of typing yet another application to re-allocate whenever we receive a new allocation order.

I am similarly tired of this situation, especially given that the court often rectifies its own error, while refusing to make an order for costs.

According to the last district judge, to do otherwise would be repressive against the defendant who did not cause the wrongful allocation.

District judges and defendant solicitors please save me and my secretary a headache, and my clients money in unrecoverable costs, by taking note.

Chris Hibbert, solicitor,Scott Rees & Co, Skelmersdale,