Ask the judges

More questions for the Gazette's panel of district judges - and more answersQ Is it essential that an application to set aside a case management order is made to the same procedural judge who made the original order?

A Not unless the case has been reserved to that judge.

While it is generally thought desirable for the original judge to deal with the application, particularly in a complex case, this is often impossible to arrange without the hearing being unacceptably delayed.

But it could be argued in some circumstances that it would be more compliant with article 6 of the Human Rights Convention for the application actually to go before a different judge.

Q I refer to Ask the Judges (see [2001] Gazette, 14 June, 47).

The panel answered a question concerning the correct track for a small claim with a substantial counterclaim by referring to a rule change which meant that 'the normal track is to be determined by reference to the value of the claim rather than a higher counterclaim'.

However, PD26 para 7.7 suggests otherwise and that the court will generally regard the larger of the claim and the counterclaim as determining the financial value for tracking purposes.

Why the confusion?

A The practice direction may be in need of some tinkering with so as to bring it up to date with the rule change.

But we do not find any real difficulty with it as it stands.

The important word in the practice direction is generally.

It is attempting to describe what will commonly happen.

It is not attempting to circumscribe the court's options.

If a claim for 1,000 is met by a defence and counterclaim for 1,000,000 'for slander for suing me', it is not going to be allocated to the multi-track.

If the defendant has a genuine 50,000 claim and the claimant just happened to get in first with a 1,000 claim, the case is not going to be allocated to the small claims track.

Questions may be e-mailed to: kim davies@lawsociety.org.ukThe answers are the view of our panel and not binding on any court.

The panel is unable to enter into personal correspondence.