Changes to Claim allocation - Will this really benefit the Defendant?

The Civil Procedure Rules (CPR) are due to be updated with many of the changes coming into force on 6th April 2009. The changes to the Rules in this 49th update can be viewed on the Ministry of Justice's website.

A significant change to the (CPR) in my line of work is to Part 26 and the allocation of cases to the small claims track, fast-track or multi-track dependent on the value of the claim.

The small claims track applies to claims excluding personal injury where the claim's value is less than £5000 or where damages for personal injury exceed £1000. This will not be changed.

The majority of personal injury claims however fall within the fast-track, this used to be for claims that fell outside of the small claims track but that did not have a financial value of more than £15,000. All claims with a value in excess of £15,000 were allocated to the multi-track.

Under the updated CPR after 6th April 2009 the fast-track financial limit will be increased to £25,000.

Working within the personal injury sector I envisage some difficulties with this change and would instead recommend an increase to the small claims track limit for personal injury claims, which has been rejected.

Firstly in relation to the increased limit for fast-track claims, a Defendant cannot currently obtain their own medical evidence in relation to the Claimant's alleged injuries unless it is a multi-track case or they make an Application to the Court. Whilst this will not be necessary in all cases, if an injury is complicated or where the Defendant has serious concerns over the nature or causation of the Claimant's injury, obtaining medical evidence from your own expert is advantageous. Unfortunately some medical experts can be biased towards the Claimant (or the Defendant) and others do not provide sufficient reports to alleviate any issues/concerns.

Taking into consideration the increase of the fast-track limit to £25,000 along with the nature and/or complexity of the injuries the Claimant would have to incur to exceed this new limit, I believe that Defendant Solicitors are likely to be disadvantaged.

In my opinion it would be more beneficial to increase the small claims track for personal injury claims. Currently the limit for these is only £1000 and taking into consideration the recent JSB guidance, only whiplash type injuries persisting for less than 1 month fall within this track. With the JSB guidelines increasing the valuations in each revision, should the Court system not increase their banding to match this?

A typical whiplash injury lasts between 6-12 months with a proportion persisting for up to 2 years post accident. With the recent JSB guidance providing for damages in the region of £2750 for a simple 12 month whiplash injury and £5000 for a 2 year whiplash it could be the case that we no longer see any personal injury claims that fall within the Small Claims Track, thus continuing to increase Defendant's Solicitors costs.

I am sure someone from the Claimant side's views would differ...

Responding to a Claim Form and the Deemed Date of Service

Under Part 6 of the Civil Procedure Rules 1996 (CPR) when a Claim Form has been served on a Defendant, the Defendant has 14 days to respond from the date of service. The Defendant must either:

1. Admit the whole of the claim; (for example agreeing that a payment should be made)
2. Dispute the whole of the claim; (e.g. disputing liability for the claim) or
3. Dispute part of the claim (e.g. admitting liability but disputing the sum of the claim)

If the Defendant intends to dispute any part of the claim but does not respond to the Claim Form by either filing an Acknowledgement of Service or Defence within the 14 days, the Claimant may obtain Default Judgment against the Defendant (Part 12 CPR).

For example further to a road traffic accident the Claimant may issue Court proceedings to recover his damages, if the Defendant does not respond to the Claim Form within 14 days of service the Claimant can enter Judgment in default against the Defendant regardless of whether liability for the accident is admitted or disputed by the Defendant.

Where a Defendant has not responded and Judgment has been filed by the Claimant, the Court will automatically find in favour of the Claimant, without a trial taking place. If the Defendant wants to contest liability he will then have to make an Application to the Court to get Judgment set aside (Part 13 CPR).

It is therefore extremely important if you receive a Claim Form to respond to the Court within the given time. If you are not legally qualified you should consult a Solicitor or your local Citizen's Advice Bureau (CAB).

Where an Acknowledgement of Service is filed, the Defendant is given a further 14 days to submit a Defence to the Claimant's claim. Filing the Acknowledgement therefore gives the Defendant 28 days in total from the deemed date of service to file a Defence. This is particularly a good option where the Defendant needs to seek legal advice or a solicitor needs to take further instructions from their client before finalising the Defence.

When is the deemed date of service?

This may differ in certain cases so it is worth checking what information is included with the Claim Form and in practice on receipt of a Claim Form a Solicitor will telephone the Court to confirm this.

Prior to the implementation of The Civil Procedure (Amendment) Rules 2008, the deemed date of service for a Claim Form served by post was the second day after posting. i.e. if the date of posting was 25th June, the Claim Form would be deemed served on 27th June.

The rules as amended in 2008 however now provide that service does not occur until two “business days” after dispatch and therefore weekends are no longer counted. i.e. if a Claim Form was issued on a Thursday, the deemed date of service would not be until the following Monday. This rule applies regardless of the means used to serve a Claim Form. Documents other than a Claim Form are deemed served 2 days after dispatch regardless of the method.

One particular case I have come across that is slightly different to the above is where the Claim Form has been issued by the County Court Bulk Centre. In this case the included information provides the date of service as 5 days after the issue date detailed on the Claim Form. Proceedings issued from the Bulk Centre are usually simple debt collection matters which in the main is undefended.


Further information can be found on HMCS's website