Q: A paying party serving points of dispute out of time may not be heard on a detailed assessment without permission (CPR r 47.9(3)) and the court cannot issue a default certificate because of r 47.9(5).

If the paying party cannot or does not obtain permission to proceed, both parties are in limbo.

What next?A: The court has a duty to ensure that the assessment proceeds expeditiously and fairly (r 1.1(2)(d)).

Bearing in mind that the overriding objective is always the first port of call when endeavouring to resolve lacunas in the CPR, the suggested way forward is (a) for the court, at the invitation of one of the parties, to list the detailed assessment for hearing, (b) for the (deemed) application from the receiving party for permission to be heard to be determined at the outset of the assessment, (c) if granted, for the assessment then to proceed and (d) if refused, for the paying party, in breach of r 47.9(2) to be sent on his way.

This will involve just one court attendance by the parties and the judicial decision is made by the judge hearing all the facts relevant to the exercise of his discretion.

A just, cheap, expeditious and proportionate answer.Q: I deal with many traffic accident small claims for defendants.

I make a point of filing a defence which complies with the CPR by fully setting out my client's case and getting the client to personally sign the statement of truth.

When the courts give allocation directions they always require the filing of the witness statement from the defendant, even though it will add nothing to the statement of case.

This seems to me to be a waste of time.

Can I not simply rely on the defence?A: The direction given in such cases will usually be standard form -- see CPR PD27, Appendix, Form B.

It is unrealistic to expect the court to pick up that, in your particular case, the defence is sufficiently full to stand as a witness statement and, in any event, that is a judgment for you to make.

If you are content with it for that purpose, there is no objection to your "complying" with the direction by writing to the claimant and the court saying as much, rather than provide a further copy.

Be careful before you do this, however, that the defence really does contain all the client's evidence.

Otherwise, the client may be prejudiced at the hearing or you may face an adjournment at your own expense.Q: I am acting for a claimant in the county court and the defendant has filed a defence and counterclaim.

My opponent has threatened to take judgment in default if I do not file a defence to the counterclaim.

I thought that only applied in the High Court.

Has this changed?A: Yes.

The counterclaim is, in general, treated as a claim would be (CPR r 20.3).

There is some ambiguity about the rule which would permit judgment in default (r 12.3) since it depends on filing or failure to file an acknowledgement of service -- which is not required for a counterclaim.

Expect the Rule Committee to clarify this by amendment shortly and making clear that judgment in default of a defence to a counterclaim is available.Q: I have had several cases where I have obtained a default judgment for damages to be decided by the court.

Some courts have allocated to track, some courts have not.

Do you have any guidance on allocation where an assessment is to take place? What is the effect of allocating?A: If the case would have been allocated to the small claims track had it been defended then CPR PD26 para 12.8(2) says the court will normally allocate the case to that track.

By doing so, the court then brings r 44.9 into effect which means the 'no costs' provisions of the small claims track will apply to both pre and post-allocation work.

But there are exceptions: if, say, the court has made an order for costs on the hearing of a Part 24 application prior to allocation then the costs order remains unaffected by the allocation (see r 44.11(1)).

The reason for r 44.9 is obvious: a claimant should not be in a better position to claim costs where a small claim is undefended than if the defendant files a defence, triggering an allocation to the small claims track under Part 26.If the financial value of the claim would take it outside the small claims track then PD para 12.8 steers the procedural judge away from allocating the case to either the fast track or multi-track when the default judgment is entered.

Appropriate directions will be given for the disposal hearing under PD26 para 12.8.

The judge can fix the damages or give further directions through to a final hearing.

There is nothing to be gained by allocating to track.

As PD26 para 12.9(4) makes clear, the fast track fixed trial costs set out in Part 46 do not apply to a case dealt with at a disposal hearing, whatever the financial value of the claim.

The costs of a disposal hearing falling outside the small claims track are in the discretion of the court, to be decided on factors such as the time spent and proportionality.Q: I have several cases commenced before 26 April 1999 where no court order under the CPR has yet been made.

Are there any potential problems?A: There certainly are.

If a case does not come before the court between 26 April 1999 and 25 April 2000 then (bar some exceptions in CPR PD51 para 19(3)) the case is automatically stayed (PD51 para 19(1)) come 26 April 2000.

You can apply to the court for the stay to be lifted but the struggle to achieve the order you seek will be as uphill as were all those applications to reinstate under Rastin following the CCR Ord 17 r 11 debacle.

The application for the stay to be lifted would have to be made under CPR Part 23, supported with evidence.

CPR r 3.9 would have some relevance to the court's discretion but you would be facing a task it would be best to avoid.

Write immediately -- today -- to the court asking the procedural judge to make case management decisions under the CPR on all those cases that have gone to sleep over the past nine months.Q: My client defendant travelled 232 miles to give evidence at a small claims hearing.

Judgment was reserved and, when delivered in writing, was in his favour.

Costs were not mentioned at the hearing but had been claimed in the defence.

A written request for travelling expenses was ignored.

Should the client expect the court to order the claimant to pay these?A: CPR r 44.13(1) provides that where the court makes an order which does not mention costs, no party is entitled to costs in relation to that order.

But it is usual for a reserved judgment delivered in writing to deal with costs or to invite representations on the topic.

Accidental omissions in orders can be corrected under r 40.12 and the defendant's letter may be taken by the court to be asking the judge to consider whether it was by accident that he omitted to refer to costs.

The fact that the defendant did not apply for costs when he did not know the outcome of the case is hardly likely to be significant.

There is no ceiling on the award for travelling expenses in a small claim (r 27.14(3)(b)).