There are two main ways in which Court proceedings can be issued – through Part 7 or Part 8 of the Civil Procedure Rules. This recent case on 16 December 2020 looked at the question of whether a judge can order the transfer of proceedings from Part 8 to Part 7 after the judge has made an order approving liability on behalf of a child and whether the claim had been managed properly from the outset of the litigation.
The underlying case concerned a child Claimant who was seriously injured in an accident. The parties reached an agreement in relation to liability and the Claimant issued Part 8 proceedings to get the offer on liability approved.
The Claimant contended that the Part 7 proceedings could not continue as the Judge had approved the order following the Part 8 application and there was no further action for the Court to make a determination upon.
The Defendants argued that the Claimant agreed for a CMC to be held and that pursuant to CPR 8.1(3), the court had the power to order that Part 8 proceedings be transferred to Part 7 proceedings at any stage.
No jurisdiction to transfer proceedings
The Master held that he did not have jurisdiction to order the transfer of proceedings. Once the Court had approved the settlement in relation to liability, which was in fact the only matter brought before the Court in the proceedings, the Part 8 proceedings had come to an end.
The matter of whether the Court had jurisdiction to transfer had not been put before the Judge who made the order and the fact that the Claimant had agreed to the order listing the CMC did not give the Court jurisdiction.
It is at the Judge’s discretion as to whether a claim should be transferred to the Part 7 procedure and this case is an example of where such a transfer is not ordered.
Potential solicitor negligence: Failure to make application at appropriate time
This case raises the issue of why a transfer order for the action to continue as Part 7 proceedings was not obtained prior to the Court approving the order under the Part 8 proceedings.
Potential solicitor negligence: Failure to review the value of action
The case of Lyle v Allianz Insurance plc illustrates the dangers of issuing under CPR Part 8 and then failing to notify the court of the increased value in the claim and transfer the matter to a Part 7 claim The Claimant’s solicitors issued an injury claim in September 2011 within the Road Traffic Protocol limit of £10,000 under Part 8 as liability was not in dispute and then obtained a stay for three years during which the Claimant obtained further medical evidence.
In March 2017, the Claimant obtained an order that the stay be lifted and the action proceed as a Part 7 claim. The Defendant sought to set aside this order and the claim was subsequently struck out. On appeal the Circuit Judge found that the court had the power to allow the action to proceed as a Part 7 claim but on the facts of the case, it was not appropriate to do so.
The Judge in this case found that during the period of the stay it must have become obvious to the claimant’s solicitors that the action had a larger value. At that time they were under a duty to notify the court and transfer the matter to a Part 7 claim. The Defendant contended that the Claimant could not have reasonably have valued the claim at £10,000 at the time the stay was sought. The claimant should not, therefore, have used the procedure under 16.2 of Practice Direction 8B.
The Court considered whether it should exercise its discretion to order a transfer of proceedings where there had been excessive delay by the Claimant and/or his solicitors and no appropriate explanation for the delay. The Claimant’s solicitors had not explained to the Defendants that they were obtaining medical evidence and had not justified a six year delay. They had also taken actions without informing the Defendant which the Court found to be an abuse of process.
Read the full judgment here.
When can the Part 8 procedure be used?
Part 8 claims are generally less complex claims, which are unlikely to involve a significant dispute of fact (CPR 8.1) and will determine issues of law rather than factual disputes. Part 8 claims may be used in cost-only proceedings, declaration claims or personal injury and accident claims, where liability is not disputed as in this case. The process tends to be a lot quicker than the Part 7 process however there is a requirement to provide supporting evidence for the claim when issuing the proceedings, rather than at a later stage in the litigation.
When can the Part 7 procedure be used?
Part 7 claims are for proceedings where there is likely to be a substantial dispute of fact. Part 7 claims are the most common claims issued. In Part 7 claims, the evidence relied upon in the claim does not need to be filed with the claim form but the Court orders exchange of witness evidence later in the litigation process.
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