Q: I am an employed solicitor.

Following a road traffic accident in which I was involved, I have been sued by the other driver.

My Civil Procedure Rules 1998 (CPR) part 36 offer to settle liability on a 50-50 basis has been rejected and the claim has been allocated to the small claims track.

I have spent considerable time on the case paperwork albeit at work although I have kept my firm's name and address out of the defence and correspondence as I did not wish to place unnecessary pressure on the claimant.

If the claimant fails to beat the part 36 offer, bearing in mind the futile nature of the litigation, can I apply for costs which my firm is being deprived of?A: Because this is a small claim, neither the usual costs rules not part 36 have any application although the court may exercise its general power under rule 44 to consider the effect of any offer made.

A full costs order can only be considered if there is 'unreasonable behaviour' (rule 27.14(2)).

You have stated nothing which could approach such behaviour.

However, if the Judge could be persuaded to make a costs order on the basis of such behaviour, you would be limited in the amount recoverable by being a litigant in person (rule 48.6(6)(a)).

Having done the work in the firm's time as an employed solicitor, you have presumably suffered no financial loss and so could not recover more than £9.25 per hour for the time spent on the case.Q: My client began a claim which was deliberately limited to £5,000 so that allocation to the small claims track could be achieved.

In the event, the defendant has counterclaimed for £60,000.

Rule 26.8(1) still includes the value of the counterclaim as one of the allocation considerations but what is the position when this does not seem to square with rule 26.7(3) which prohibits allocation to a track without the parties' consent if the value of the claim exceeds the track limit?A: Before May 2000 the case would have been allocated to the multi-track on the strength of the value of the counterclaim.

As a result of a rule change since then, the normal track is determined by reference to the value of the claim rather than a higher counterclaim.

But the value of any counterclaim will be a relevant consideration in deciding whether to allocate to a higher track (rule 26.8(1)(e)).

Rule 26.7(3), therefore, is not relevant.The court has a wide discretion as to 'tracking up' for which the parties' consent is not needed.

If the counterclaim against your client is genuine, it may well involve a considerable amount of evidence and involve several witnesses and the length of the final hearing could be more than one day (see PD26 paragraph 8.1(2)(c)).

The court may well decide to allocate to the multi-track and so your client may wish to increase his claim to the real provable value.Q: If on a disposal the claimant beats his own part 36 offer, is he entitled to pena lty costs and interest under rule 36.21? It has been suggested to me that rule 36.21 cannot apply to a disposal because a disposal is not a trial to which the rule is devoted.A: Rule 36.21 does not literally apply to a disposal but the court is unlikely to be impressed by such a dry and academic argument.

It has an analogous power in applying the overriding objective to award penalty costs and interest.

Indeed, in Petrotrade v Texaco Ltd (2000) The Times, 14 June the court of Appeal approved the award of penalty costs and interest where summary judgment has been entered for better than the claimant's offer.Q: The panel says that the courts must set aside a default judgment where the claim form was not served even though the defendant has not acted promptly after discovering the judgment ([2001] Gazette, 20 April, 38).

Does this mean that the defendant who applies to set aside a couple of years after discovery can still be assured of success?A: It is arguable that in this situation the defendant might be estopped from denying that he had been served.

In any event, if the delay in applying was substantial, the defendant might well have an uphill task in persuading the court that service had not been effected before judgment was entered.Q: CPR rule 6(5) provides for a document to be served at an individual's 'usual or last known address'.

If purported service is effected at a former residence which the claimant knows the defendant has left, is it good service (that is to say, does 'last known' mean the residence last known to the other party or must it be the last 'known' residence)?A: The panel is divided.

One view is that 'last known address' means that the serving party knows the party to be served had left -- otherwise, there would be a requirement to serve at 'the present address'.

Accordingly, if the document is not returned through the 'dead letter' service, it will be presumed served subject to the outcome of any application to set aside a consequential judgment or order.The contrary view of other members of the panel is that single service has the objective of bringing the document concerned to the addressee's attention, it must be an incorrect interpretation of the rule that a document sent to an address which the addressee is known to have left is deemed served.

It is pertinent that where a certificate of service is required it must confirm that the document has not been returned undelivered.

If the party's whereabouts are unknown and cannot reasonable be ascertained, the proper course (in an appropriate case) is to apply for an order permitting service by an alternative method.

That order might permit posting to the former address, if there is evidence that the document will thereby come to the addressee's attention.

Alternatively, the court might dispense with service -- particularly if satisfied that the party was evading service -- and leave it to the party to apply to set aside the order when he surfaced.Q: I find the CPR confusing as to the correct procedure to be followed where the only relief sought is a mandatory injunction and there is urgency but no express statutory provision for the injunction (as in the case say of an application under part IV of the Family Law Act 1996 or the Housing Act 1996).

How should the case be commenced and how can the hearing be accelerated?A: A part 7 claim should be made.

If a defence is filed, the claim is allocated and moves to trial in the normal way.

If not, the claimant may apply for judgment on notice which must be served (PD12 paragraph 5.1).

If there is need f or urgent protection then the claimant may seek an interim order.

Should that happen and the case is straightforward, the hearing may be treated as the trial and a final order made.

Alternatively, of course, content with his interim order, the claimant may simply not proceed further.