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Civil Procedure: Mind your orders!

Mrs. Francois v Barclays Bank Plc [2017] EWHC 3531 (QB)

The case of Mrs Francois v Barclays Bank Plc [2017] EWHC 3531 (QB) should act as a warning to practitioners to check court orders satisfy themselves that a claim has been properly re-allocated.

The appellant (F) issued a small claim against the respondent bank (B) for race discrimination. The claim was originally allocated to the small claims track due to the value of the claim. The court subsequently wrote to F. The letter referred to the claim as being “listed for fast track trial”. Yet, no order re-allocating the claim was drawn up by the court or sent to the parties. A two-day trial was eventually listed.

At trial, F’s claim was dismissed and F was ordered to pay B’s costs to be assessed if not agreed, with an interim payment of £25,000. The trial judge noted that there was some confusion as to track allocation. He accepted that no order re-allocating the claim had been made, but it could be inferred that the claim must have been allocated to the fast track because it had been listed for a two day trial.

F appealed the costs order. She argued that the trial judge had erred in finding that the claim had been re-allocated from the small claim track to the fast track in the absence of a clear order.

In allowing F’s appeal, the High Court held that allocation and re-allocation to track were serious steps due to the procedural and cost consequences of both actions. A claimant’s costs exposure was minimal on the small claim track unless they had been guilty of unreasonable conduct within the meaning of CPR 27.14(2)(g). It was clear from the CPR 26.9 that the allocation of a claim to a particular category must be notified. Moreover that was a decision from which a party might appeal, as was shown by practice direction 26.11.1. There was no grounds for arguing that parties did not have to be notified of a re-allocation to a different track. Both the overriding objective and fairness in the administration of justice in litigation required that such a significant and important change was notified to the parties. In the absence of a contrary indication the rules should be so construed.

Elizabeth Dwomoh / 27th Feb 2018


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