The allocation principles set out in paragraph 7 of CPR PD 26 do not provide any guidance on how complexity is to be judged for the purposes of track allocation.
However, a number of reported PPI (or payment protection insurance) cases – albeit at first instance and therefore only persuasive and not binding – have looked at complexity in the context of track allocation.
Gillies v Blackhorse Limited [2011] EW Misc 20 (19 December 2011) and Loughlin v Blackhorse Limited [2012] EW Misc 8 (CC) (13 January 2012) were both appeals against the allocation of the claim to the small claims track. Both decisions were appealed on the grounds that the cases should have been allocated to the fast track given the complexity of facts and law and the circumstances of the parties; specifically, having regard to the overriding objective, that the parties should not be placed on an unequal footing by the claimant not being legally represented. Both cases follow a consistent approach, on the particular facts, favouring small claims jurisdiction. A number of factors can be distilled from the judgments.
As to complexity:
(1) Actual complexity, not ‘ostensible’ complexity
In Gillies v Black Horse Limited, the judge noted that,
Mr Gillies’ claim is based on a number of familiar grounds; he alleges (amongst other things) misrepresentation, breach of the Insurance Conduct of Business Rules amounting to a breach of statutory duty under Section 150 of the Financial Services and Markets Act 2000, an unfair relationship pursuant to the Consumer Credit Act, negligence and breach of contract. Those are all certainly pleaded allegations and they are issues raised in many of these cases”.
Although a number of different legal claims were pleaded, in both cases the court was satisfied that the essence of the claimant’s case was that a misrepresentation was made to the claimant about whether the PPI policy was compulsory or not.
In Loughlin v Black Horse Limited, the judge held the view that, “These matters are much more straightforward than they appear to be”.
(2) Guidance from the higher courts mitigate complexity
The court in both Gillies and Loughlin noted that some of the issues had been considered in the higher courts, with the judge in Loughlin stating, “Looking at the pleadings some of them have now been dealt with at a higher level ……… and the district judge is well able to take those matters into account in guiding the litigant through the small claim”.
(3) Cases allocated to the small claims track may involve some complexity
It should not be assumed that cases allocated to the small claims track must be devoid of complexity.
In Loughlin the judge noted, “it is my experience of experienced district judges that, in dealing with these cases which are the subject of a significant number of claims, they become pretty experienced in the issues that arise and how to deal with them, and if something goes wrong then the litigant may appeal”.
Directions on the small and multi-track
At each stage of proceedings, the Court can make directions to ensure that the case proceeds properly. Directions can cover a number of different issues related to the proceedings.
Paragraph 28.3 provides the case management direction which are possible on the fast track. It states:
(1) The matters to be dealt with by directions under rule 28.2(1) include –
(a) disclosure of documents;
(b) service of witness statements; and
(c) expert evidence.
(2) If the court decides not to direct standard disclosure, it may –
(a) direct that no disclosure take place; or
(b) specify the documents or the classes of documents which the parties must disclose.
(Rule 31.6 explains what is meant by standard disclosure)
The fast track uses directions which are likely to be more straight forward and rigid. Parties will be expected to comply with directions as the Court may be less willing to be flexible on a timetable where a case is factually straight forward.
Paragraph 29.3 provides the analogous case management powers for the multi track. It states:
1) When it allocates a case to the multi-track, the court will –
(a) give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the trial; or may
(b) fix –
(i) a case management conference; or
(ii) a pre-trial review,
or both, and give such other directions relating to the management of the case as it sees fit.
(2) The court will fix the trial date or the period in which the trial is to take place as soon as practicable.
(3) When the court fixes the trial date or the trial period under paragraph (2), it will –
(a) give notice to the parties of the date or period; and
(b) specify the date by which the parties must file a pre-trial check list.
Each of these powers related to cases on the Multi Track can be used to make sure a case progresses. A case management conference could be helpful in deciding which steps should be taken with respect to case management. It could also be used to ensure parties’ compliance with directions.
Many of these directions mirror those on the fast track. On the multi-track there is greater flexibility as to the timing of the steps and the parties can agree to vary the timetable as appropriate.