Something nasty is lurking in the personal injury woodshed - a provision which can bring an otherwise meritorious claim to a premature end, simply because it was brought in the wrong court.The culprit is, of course, s.40 of the County Courts Act, as amended by the Courts and Legal Services Act 1990.The amended section reads as follows: 'Where the High Court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subs (8) to be in a county court, it shall: (a) order the transfer of the proceedings to a county court; or (b) if the court is satisfied that the person bringing the proceedings knew or ought to have known of that requirement, order that they be struck out.(2) Subject to any such provision, the High Court may order the transfer of any proceedings before it to a county court.'The provisions mentioned in subs (1) are any made under the Courts and Legal Services Act 1990 or any other enactment, and include the High Court and County Courts Jurisdiction Order 1991, which came into force on 1 July 1991.

The order provides that personal injury claims shall be brought in a county court unless the value of the action is £50,000 or more.Despite having been in force for over two years, it seems that some practitioners are still taken by surprise by the above provisions.

It is not uncommon to issue in the High Court.

One advantage is that a generally indorsed writ may be issued, and served, without the need for a detailed statem ent of claim.

This is particularly helpful in cases where the primary limitation period is about to expire, and there are further enquiries to be made.

It is also tempting to issue in the High Court in cases where prognosis, and hence quantum is uncertain.However, attempts to strike out claims at the stage of issue and service are becoming increasingly popular among defendants in personal injury actions, and they can be difficult to counter.

Particularly vulnerable to this sort of attack is the case where the primary limitation period has expired between issue of the writ and service.Those who have been on the receiving end of such an attack have used various arguments in attempts to extricate themselves.

An affidavit from the solicitor who decided to issue in the High Court, showing his or her calculations and any enquiries he or she might have made with regard to the medical evidence available, may save the day, provided the claim appeared at that point to be worth £50,000 or more.

The value of the claim is calculated by reference to what the plaintiff 'reasonably expects to recover (art 9(1)(a) of the 1991 Jurisdiction Order, cited above), excluding any statutory interest and costs (ibid, art 9(2)).Until recently, the courts had held that the power to strike out was mandatory and not discretionary (see, for example, the decisions of Turner J in Groome v Norman Motors (Wallisdown) Ltd (unreported, 30 June 1992, Winchester Crown Court) and Judge J in Clarke v Cush (unreported, 2 November 1992, Winchester Crown Court)).

However, the Court of Appeal has now decided in the cases Restick v Crickmore, Nisbet v Granada Entertainment Ltd, Reed v Department of Employment and Warren v Hinchcliffe that the provisions of s.40 confer such a discretion.Despite the respondents' submissions that the meaning of the section is clear and unambiguous, the Court of Appeal held that the construction adopted in the lower courts was incorrect.

The word 'or' in combination with the word 'shall' was held to give a choice between two courses of action, ie, to transfer to the county court or strike the action out.It is still important to issue proceedings in the appropriate court.

The risk of being struck out remains, albeit tempered by the court's discretion.

The potential sanction in costs is also worth bearing in mind.

It was pointed out by Stuart-Smith LJ in his judgment in the above decision that s.51 of the Supreme Court Act 1981 as amended by the 1990 Act provides that wasted costs can be awarded against legal advisers in respect of their improper, unreasonable or negligent acts or omissions.Further, subss (8) and (9) of s.51 permit a taxing officer to reduce the costs otherwise payable by up to 25% where a case is started in the wrong court.

As the learn - d judge pointed out, these sanctions are 'likely to have an electrifying effect on the solicitors' profession'.So, under what circumstances might such a case be struck out, given that a discretion now exists? In his judgment, Stuart-Smith LJ gave some examples.

It appears from his general comments that a case will not be struck out if it is in the wrong court due to a genuine mistake.

If a solicitor or party persists in beginning actions in the wrong place, or attempts to harass a defendant in this way, or if the claim is obviously below the value threshold, then the decision of the court may well be to strike out.

It would seem from these comments that, as with the case of indemnity costs, it is the degree of misconduct on the part of the plaintiff or his or her legal advisers that i s relevant.

No doubt authority will continue to build upon the point.The message from the courts, however, is clear.

If there is any doubt with regard to the size of your claim, proceed straight to the county court.

Although this course of action is not without its difficulties, it may save considerable anxiety in the long run.