
FOREWORD TO THE THIRD EDITION
I am delighted to have been asked to write a foreword to the 3rd edition of Dominic Bright’s book “a practical guide to the small claims track”. I have read the book to write this foreword, and it does exactly what it says, namely provide a practical guide to those involved in claims in this track. For example, bringing extra copies of documents and what to do if you are late. Claims on the small track make up a substantial volume of the work of the County Court and anything that can be done to help those cases run smoothly will not just help the litigants involved in the case, but also the judiciary, court staff and the litigants involved in other cases by reducing delay and increasing efficiency.
I agree with and reiterate what the 2 authors of the forewords to the 1st and 2nd editions have said, in particular with regard to the rule of law. It is also important to consider that “small” claim does not necessarily mean to the people involved that it is “small” or insignificant. This book will help unrepresented parties and those who represent them to get the best out of the system and contribute to achieving a fair result.
His Honour Judge Marquand
Senior Circuit Judge
Designated Civil Judge for West London
PREFACE TO THE THIRD EDITION
Fully revised, updated, and relevant to over 70% of civil claims.
Even clearer. Even more comprehensive. Even more concise.
New guidance on cross-examination, closing submissions, and skeleton arguments; new authority on mandatory mediation, putting your case, and setting aside judgment; and a step-by-step guide to carriage, drafting, and agreement, of minutes of order.
The law in England and Wales is stated as at 1 October 2024.
Dominic Bright
Lamb Chambers, Temple, London
October 2024
ONE – OVERVIEW
This chapter summarises the special procedure for dealing with claims that have been allocated to the small claims track.
The remaining chapters provide guidance as to when to rely upon specific rules, and when to deploy authority interpreting them.
A. Small claim
The rules of civil litigation in England and Wales are prescribed in the Civil Procedure Rules (“CPR”).
Part 27 of the CPR is entitled: ‘The small claims track’.
A “small claim” is a claim that: falls under this Part which sets out the procedure for dealing with small claims; and limits the amount of costs that can be recovered (CPR 27.1(1) and (2)).
The special procedure for dealing with claims that have been allocated to the small claims track ‘is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than £10,000 can be decided, without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs’ (Practice Direction (“PD”) 26 at [15]).
It is regrettable that these are referred to as “small claims”.
First, they make up about three-quarters of all civil claims disposed of by way of final hearing. Secondly, many would not accept that £10,000 is a “small” sum. Thirdly, the claimant bringing the claim, and the defendant defending against it, are not likely to agree that the importance of their dispute is “small”.
B. Context
In January to March 2023, 25,000 cases were allocated to the small claims track. This is more than 70 percent of all allocations.
Of the claims that went to a final hearing, three-quarters were allocated to the small claims track: 8,600. This is a decrease of about one-third when compared to the same quarter in 2023.
A claim takes about 52 weeks to go to a final hearing (Ministry of Justice, Civil Justice Statistics Quarterly, England and Wales, January to March 2024, 6 June 2024).
C. Allocation
Generally, the small claims track is the “normal track” for three types of claim (CPRs 26.9 and 27.1(2)).
First, any claim with a value of not more than £10,000. In practice, this forms the overwhelming majority.
Secondly, a “claim for personal injuries” where: the value of the claim is not more than £10,000; and the value of any claim for ‘damages for personal injuries’ arising from a road traffic accident is not more £5,000, or £1,000 in the circumstances prescribed in CPR 26.10, and £1,500 in any other claim.
A “claim for personal injuries” is one in which ‘there is a claim for damages in respect of personal injuries to the claimant or any other person’.
“Damages for personal injuries” means ‘damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed’.
“Road traffic accident” means ‘an accident resulting in bodily injury to any person caused by, or arising out of, the use of a motor vehicle on a road or other public place in England and Wales unless the injury was caused wholly or in part by a breach by the defendant of one or more of the relevant statutory provisions.
Thirdly, any claim which includes a claim by a tenant of residential premises against a landlord where: the tenant is seeking an order requiring the landlord to carry out repairs, or other work to the premises; the cost is estimated to be not more than £1,000; and the value of any other claim for damages is not more than £1,000.
If a tenant is claiming a remedy in respect of harassment, or unlawful eviction, it will not be allocated to the small claims track.
D. Civil Procedure Rules
CPRs and PDs apply, unless a CPR or PD under CPR 27 prescribes otherwise (CPR 27.2(2)).
CPRs relating to the following do not apply (CPR 27.2):
- interim remedies (except as they relate to interim injunctions);
- disclosure and inspection;
- evidence (except the power of the court to control evidence);
- miscellaneous rules about evidence;
- experts and assessors (except the duty to restrict expert evidence; experts’ overriding duty to the court; the court’s power to direct that evidence is to be given by a single joint expert; and instructions to a single joint expert);
- further information (although the court may, on the court’s own motion, order a party to provide further information if the court considers that it is appropriate);
- Part 36 offers to settle; and
- hearings (except the general rule that hearings are to be in public; communications with the court; and recording and transcription of proceedings).
E. Final remedy
The court may grant any final remedy that may be granted if the proceedings were allocated to another track (CPR 27.3).
F. Preparation
After allocation, the court will do one of the following (CPR 27.4).
Give standard directions, and fix a date for the final hearing.
Give special directions, and fix a date for the final hearing, or direct that the court consider what further directions are to be given, no later than 28 days after the date that special directions were given.
Fix a date for a preliminary hearing.
Give notice that the court proposes to deal with the claim without a hearing, and invite the parties to notify the court by a specified date if they agree.
“Standard directions” means: ‘a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing’; and any other standard directions prescribed in PD 27A.
“Special directions” means ‘directions given in addition to or instead of the standard directions.’
The general rule is that the court will give the parties at least 21 days’ notice of the date fixed for the final hearing. The exception is where the parties agree to accept less notice.
In any event, the court must inform the parties of the amount of time allowed for the final hearing.
G. Experts
No expert evidence may be given at a hearing without the court’s permission (CPR 27.5).
H. Preliminary hearing
A preliminary hearing may only be held in three circumstances (CPR 27.6).
First, special directions are needed to ensure a fair hearing, and it appears that it is necessary for a party to attend at court, so as to ensure that that party understands what she must do to comply with the special directions.
Secondly, to dispose of the claim, on the basis that one of the parties has no real prospect of success.
Thirdly, to strike out (part of) a statement of case, on the basis that it discloses no reasonable grounds for bringing, or defending, the claim.
When deciding whether or not to hold a preliminary hearing, the court must have regard to the desirability of limiting the expense of the parties that will be incurred by attending court. The parties must be given at least 14 days’ notice of the date of such a hearing.
If the parties agree, the court may treat a preliminary hearing as a final hearing.
At, or after, a preliminary hearing, the court will do three things. First, fix the date of the final hearing (if it has not already been fixed), and give the parties at least 21 days’ notice of the same, unless the parties agree to accept less notice. Secondly, inform the parties of the amount of time allowed for the final hearing. Thirdly, give any appropriate directions.
I. Additional or amended directions
The court may add to, vary, or revoke, directions (CPR 27.7).
J. Final hearing
There are six rules for the final hearing (CPR 27.8).
First, the court may adopt any method of proceeding that is fair. Secondly, hearings will be informal. Thirdly, the strict rules of evidence do not apply. Fourthly, evidence need not be on oath. Fifthly, the court may limit cross-examination. Sixthly, the court must give reasons for its decision.
K. Non-attendance
If a party does not attend the final hearing, but satisfies the following conditions, the court will take into account that party’s statement of case, and any other documents that she has filed when the claim is decided (CPR 27.9).
First, at least seven days before the hearing, written notice (“notice”) that she will not attend has been filed with the court, and served on the other party.
Secondly, at least seven days before the hearing, she has served any other documents on the other party that she has filed with the court.
Thirdly, in the notice, she has requested that the court decide the claim in her absence, and she has confirmed her compliance with the first and second condition.
Otherwise, the court may strike out the claim (CPR 27.9(2)).
The court may decide the claim solely on the evidence of the claimant if two conditions are satisfied (CPR 27.9(3)).
First, a defendant does not attend the hearing, or give notice. Secondly, the claimant does not attend the hearing, or give notice that she will not attend.
The court may strike out a claim, defence, and counterclaim, if neither party attends, nor gives notice (CPR 27.9(4)).
L. Disposal without a hearing
The court can dispose of a claim without a hearing in two circumstances. First, if both parties agree (CPR 27.10). Secondly, until 1 December 2024 (unless it is extended), without the agreement of the parties in certain circumstances (PD 51ZC at [1]).
M. Set aside & re-hearing
Where the following are met, a party may apply for an order that judgment is set aside, and that the claim is re-heard (CPR 27.11).
First, she was neither present, nor represented, at the hearing of the claim. Secondly, she has not given notice, in accordance with the rule for non-attendance at the final hearing. Thirdly, the application must be made not more than 14 days after the day on which notice of the judgment was served on her.
Where these conditions are satisfied, a court may grant the application, but only if the applicant satisfies a further two conditions.
First, she had a good reason for not attending, or being represented at, the hearing, or giving notice in accordance with the rule for non-attendance at the final hearing. Secondly, she has a reasonable prospect of success.
If judgment is set aside, the court must fix a new date to hear the claim. This may take place immediately after the application. It may also be heard by the judge who granted the application.
An application to set aside cannot succeed, where a claim was disposed of without a hearing and with the agreement of the parties.
N. Costs
There are three overarching rules.
Pre-allocation. After allocation. Re-allocation.
i. Pre-allocation
CPRs 46.11 and 46.13 apply before allocation (CPR 27.14(1)).
Generally, once a claim is allocated to the small claims track, the rules that apply to costs on this track apply to the periods before and after the claim was so allocated (CPR 27.14(1) and (5)).
Any cost orders made before a claim is allocated to the small claims track will not be affected by allocation (CPR 46.13(1)).
Where costs are assessed on the standard basis following the conclusion of a claim that had not been allocated, costs may be restricted to those that would have been allowed on the track to which the claim would likely have been allocated (CPR 46.13(3)).
ii. After allocation
Generally, a party can only be ordered to pay the following in respect of another party’s costs, fees, and expenses, including those relating to an appeal (CPR 27.14; and PD 27A at [7]):
- fixed costs of issuing the claim in Table 2 of PD 45;
- not more than £260 in respect of legal advice and assistance in proceedings that include a claim for an injunction, or an order for specific performance;
- any court (hearing and application) fees;
- expenses which a party, or a witness, has reasonably incurred in travelling to, and from, a hearing, or staying away from home so as to attend a hearing;
- not more than £95 for any loss of earnings / leave, by a party, or a witness, due to attending a hearing, or staying away from home so as to attend a hearing;
- not more than £750 in respect of an expert’s fees;
- such further costs as the court may summarily assess and order to be paid by a party who has “behaved unreasonably”;
- fixed costs prescribed by Tables 10 and 11 in PD 45 in respect of Stage 1, and where relevant Stage 2, where:
- the claim was within the scope of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents, or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims,
- the claimant reasonably believed that the claim was valued at more than the small claims track limit, in accordance with [4.1(4)] of the relevant protocol, and
- the defendant admitted liability under the process prescribed in the relevant protocol, but did not pay those Stage 1, and where relevant, Stage 2, fixed costs; and
- the reasonably incurred cost of any approved transcript.
“Behaved unreasonably” does not necessarily include a party who has rejected an offer in settlement. The court may take this fact into consideration, however, when assessing (un)reasonableness.
These limits also apply to any fee, or reward, charged by a person exercising rights of audience as a lay representative.
iii. Re-allocation
When re-allocated from the small claims track to another track, costs in relation to the other track are allowable (CPR 27.15(1)).
Where a claim is re-allocated, from the multi-track to the small claims track, CPR 27.14 applies to the period before, as well as after, re-allocation (CPR 27.15(2)). The exception is where a court order directed, or a CPR or PD prescribes, otherwise.