Rethink on how to allocate resources

District Judge Michael Walker examines the 28th update of the Civil Procedure Rules and weighs up the pros and cons of a small claims pilot scheme

Just when you thought that there had been enough changes to the Civil Procedure Rules 1998 (CPR) to last the rest of the year, along comes the 28th update.

It will interest practitioners about to litigate in three particular county courts but what happens there could affect everyone.

Allocation, allocation

The latest update is all about allocation and then only to allocation in the small claims track, particularly in the three county courts at Lincoln, Wandsworth (the writer's court) and Wigan - and only between 8 July and 7 October 2002.

Why? The reasons are threefold.

In the majority of cases in the small claims track - and this includes those road traffic accident cases all district judges deal with on a daily basis - little or no useful information is garnered from the allocation questionnaire.

The procedural judge (invariably a district judge or a deputy district judge) decides the hearing venue based on the parties' addresses or where whatever it was all happened, gives directions, guesses the time estimate for the case, and has it set down for hearing.

All straightforward and none of it assisted by the information on the allocation questionnaire.

Or so it is believed.

The second reason relates to the parties themselves, who in small claims cases are, more often than not, either litigants in person or represented by solicitors instructed by insurers in road traffic cases.

Do the former understand what 'allocation' is all about and does the answering of the questionnaire put some claimants off pursuing their cases?

As for the latter, do insurers and their solicitors genuinely see merit in completing the form? Do they not just want to deal with the statements of the case, draft the witness statements (is it too much to ask that the statements be in the witnesses' own words?), sort out the photographs and plan, and get the case listed?

Inevitably, the third reason relates to resources.

Much Court Service time is spent chasing missing allocation questionnaires, monitoring their progress through the system and constantly having to make routine, but cumulatively costly, administrative steps.

Practice direction PD27B

If we do not need the allocation questionnaires, then why bother? It is to test all the above that the 28th update makes the only amendment of the introduction of a pilot scheme for three months at the aforementioned courts.

In the opening words of practice direction PD27B: 'It provides for a pilot scheme (the small claims pilot scheme) to operate from 8 July 2002 to 7 October 2002.

The purpose of the small claims pilot scheme is to provide for allocation to the small claims track without the need for the court to serve allocation questionnaires or to make an order dispensing with them.

The small claims pilot scheme will operate in the county courts at Lincoln, Wandsworth and Wigan.

The small claims pilot scheme will apply to any claim for which the normal track is the small claims track in accordance with rule 26.6; and where a defence is filed during the period of its operation.'

What if a case is transferred into one of the three pilot courts? Simple, the scheme will not apply to any claim subject to automatic transfer under CPR rule 26.2.

The reason is logical - the district judge allocating the case can hardly ignore an allocation questionnaire if one (or more) is sitting on the court file.

Will you notice any change? It is to be hoped that you will not.

Unless the case is transferred to another court or there is an application for summary judgment, the district judge will allocate to the small claims track in the usual way and serve notice on every party.

Directions will be given as now and could include a stay for settlement or alternative dispute resolution.

Expert evidence will still be directed where appropriate.

And so on.

Within seven days of allocation, either or both parties can apply for reallocation to a different track.

What the district judges in the pilot court will be monitoring is whether the efficient disposal of the final hearing was in any way affected by the lack of the information that would have appeared on a properly completed questionnaire.

Should the case really have gone to another court for hearing? Did many more witnesses attend the hearing than had been estimated to be the case? Did the case have to be adjourned for any reason?

The future

The court staff will also collect a heap of statistical information during the the pilot.

Thereafter, the Lord Chancellor's Department, Court Service, the Civil Procedure Rules Committee and others will pore over the results.

If the pilot has been a success, then await the necessary rule changes to bring the pilot into national application.

That will not happen until at least 2003.

One of the principles behind the Woolf reforms was the application of a 'one size fits all' approach to civil procedure and the pilot is a major dent in that principle.

Many will wish to see whether the results justify the abandonment of the principle.

What about the rest of the 28th update? There is nothing else.

All that you will find inside the shrink wrapping from The Stationery Office is a two-page practice direction 27B, and updated contents and checklist sections.

Unless you will be litigating in one of the three pilot courts, you can file the update away.

Or can you? Sometimes, things have a habit of creeping up when they are least expected.

The sharp-eyed will notice that the checklist section for the 28th update is shorter than that which came out with the 27th update Why is this so? The Stationery Office has taken the opportunity to remove from the second volume of the Blue Books various of the practice directions supplementing part 49, which have been obsolete since 25 March 2002.

Only PD49B (applications under the Companies Act 1985) and PD49E (patents) need be retained.

The Stationery Office has not given instructions to remove PD49C (the Technology and Construction Court), PD49D (The Commercial Court), PD49F (admiralty), PD48G (arbitrations) or PD49H (Mercantile Courts and Business List), but they really have been replaced by parts 58 to 62 and can be removed, thus freeing much-needed breathing space to a full second volume of the Blue Books.

Enjoy the shredding.

District Judge Michael Walker sits at Wandsworth County Court and is a contributor to Jordan's Civil Court Service