Disposing of inconsistencies

District Judge John Mitchell considers the new procedural regime for fixing damages

Last November, solicitors sent an e-mail: 'Dear Santa: we have a problem.

When judgment in default of appearance or defence or on admission of liability is given and a disposal hearing is listed, we often do not know whether the court will hear the case and make a final decision on quantum, or merely give directions.

To make matters worse, different courts have different practices.

Some-times disposal hearings consist of submissions only but sometimes oral evidence is received.

Can you help?' Christmas came early.

Santa replied.

'You have been such good boys and girls that I am going to amend practice direction 26, paragraph 12 of the Civil Procedure Rules 1998 (CPR) - with effect from 2 December 2002.'

To allocate or not?

CPR rule 14.8 states that where a court has entered judgment it will give any directions it considers appropriate and 'if it considers it appropriate', allocate the case.

Practice direction 26, paragraph 12.3 used to indicate that the claim would not normally be allocated to a track other than the small claims track unless the amount payable appears to be genuinely disputed on grounds which appear to be substantial.

Now, with the exception of claims allocated to the small claims track, the claim will not normally be allocated unless the amount payable appears to be genuinely disputed on grounds which appear to be substantial or the dispute is not suitable to be dealt with at a disposal hearing.

A disposal hearing is defined as one which will not normally last longer than 30 minutes and at which the court will not normally hear oral evidence.

Most claims of any substance and those which require oral evidence will, therefore, be allocated to track.

This means that part 46 (fast track costs) will apply.

Expect that straightforward assessments of general damages for relatively minor personal injuries such as whiplash may not be allocated unless loss of earnings are claimed and are in dispute.

If the court does not order allocation questionnaires to be filed, it is uncertain whether an allocation fee will have to be paid under the County Court Fees Order 1999 but a listing fee will be required.

Disposal hearings

At a disposal hearing, the court may decide the amount payable or give directions as to the future conduct of the proceedings (practice direction 26, paragraph 12.4).

Moreover, if the court decides at the hearing to allocate the claim to the small claims track, it may treat the hearing as a final hearing.

When the disposal hearing is used to assess damages, oral evidence will the exception and evidence will be given by way of witness statement (CPR rule 32.6).

Costs will normally be assessed summarily.

Giving directions

If allocation questionnaires are absent, a judge who has to give directions will be faced with the difficult problem of having to guess the issues and which directions to make.

Allocation questionnaires can be ordered under practice direction 26, paragraph 12.2 but this will cause delay.

A hearing for directions can be ordered but this will mean the parties incurring expense and delay.

Ideally, the court should have the parties' statements of issue - causation, disputes over experts, etcetera - and their proposals for directions when entering judgment.

It has not been made a requirement that claimants should file proposed (let alone, agreed) directions when requesting judgment but nevertheless, the prudent solicitor who wants to avoid delay and the wasted costs of a directions hearing will do so.

Directions for assessment will also be given when a defence is struck out or summary judgment is entered, so advocates appearing on these applications must be prepared to indicate what is required.

Matters to be considered include:

- The live issues.

What evidence - factual or expert - has been agreed?

- Is a directions hearing needed and, if so, can it be conducted by telephone?

- Does the assessment need to be transferred from a feeder court to a civil trial centre or to the claimant's home court?

- Is the case suitable for alternative dispute resolution?

- Will oral evidence be needed?

- What is a realistic time estimate?

- Is a disposal hearing appropriate or does the assessment need to be allocated to track? Which track?

- What disclosure is required?

- When can witness statements be filed and served?

- Is expert evidence necessary and if so, is a single joint expert appropriate? Has one been agreed? If a single joint expert is inappropriate, why? Is a further report necessary and if so, when will it be ready?

- Does the schedule of special damages need to be amended? When should a counter schedule be filed?

- Is a case management conference likely to be needed and, if so, at what stage? Can it be conducted by telephone?

- Who should conduct the assessment hearing? A master or district judge can conduct an assessment which has been allocated to the multi-track (practice direction 26, paragraph 12.6).

However, as the Court of Appeal indicated in Sandry v Jones (2000) The Times, 3 August, careful consideration needs to be given to the appropriate level of judicial expertise required to hear a particular case.

The complexity of the case cannot be defined solely by the amount in dispute.

Another factor is the length of hearing.

Because of listing considerations it will seldom be appropriate for assessments with a time estimate of more than one day to be heard by a district judge if a circuit judge is available.

- Dates to avoid.

It will help if the claimant can indicate whether the defendant is likely to play any part in the assessment.

Has he been entirely non-responsive or have negotiations reduced the issues to those of quantum?

Checking directions

Even if the claimant's solicitor submits proposed directions when requesting judgment, problems can still be caused by a lack of input from the defendant.

It is important that both parties check the directions as soon as they are received and apply for any variation within the seven days allowed by CPR rule 3.3(5).

If a disposal hearing is inappropriate, now is the time to tell the court - not at the hearing.

The appropriateness of the directions and the time estimate will need to be kept under review if last-minute applications for adjournment or an extended hearing time are to be avoided.

Clearly, if the aims of the new procedure are to be met, the court will need help from both parties.

Lawyers should make compliance with CPR rule 1.3 their (belated) New Year resolution.

District Judge Mitchell sits at Bow County Court