Housing claims and the intermediate track - Part 2

In her excellent post earlier this year (here), Cara Hall set out the position under the CPR in relation to housing cases and the intermediate track ("IT"), summarising as follows:

1. Possession claims and other housing claims involving non-monetary relief can be allocated to the intermediate track but only if it is in the interests of justice to do so;
2. When a claim is allocated to the intermediate track (and the fast track for that matter), the court must allocate it to a complexity band: this applies even to cases for possession, disrepair or unlawful eviction; and
3. Despite the wording within CPR 26 and 28 indicating otherwise, when one looks at CPR 45, it is clear that none of the rules relating to fixed costs apply.

However, anecdotally, there have been a number of recent instances of courts refusing to allocate housing cases to the IT on the basis that, being exempt from IT fixed recoverable costs ("FRC") by r.45.1(4), such cases cannot be allocated to that track.

This would seem to be wrong for two main reasons.

First, there is simply nothing in the CPR to suggest that this is the case:

1. Allocation is governed by CPR Part 26, not by Part 45.
2. Where a provision in Part 26 is intended only to apply to claims subject to IT FRC, this is expressly stated: see r.26.7(7).
3. If it were intended that claims exempted from IT FRC could not be allocated to the IT, one would expect that to be stated in Part 26 (or Practice Direction 26). There is no provision to that effect. 
4. CPR r.45.1(4) does not purport to restrict the court’s powers in relation to allocation; instead it simply removes one of the consequences of that allocation

Second, the consequences of such a position are unlikely to have been intended:

1. CPR r.45.1(4) also exempts such housing cases from the fast track (“FT”) FRC scheme in Section VI of Part 45.
2. Therefore, if exemption from FRC did mean that such claims could not be allocated to the IT, it would presumably also mean that they could not be allocated to the FT.^[1]
3. Given that (i) possession cases cannot be allocated to the small claims track (“SCT”) except with the agreement of the parties (r.55.9(2)), (ii) opposed disrepair claims will not usually be suitable for allocation to the SCT (PD 26 para 15(3)^[2]) and (iii) unlawful eviction claims cannot be allocated to the SCT (r.26.12(2)), the majority of such cases could therefore only be allocated to the multi-track (“MT”).
4. Given that the MT is the normal track for cases which are worth over £100,000, where the trial will last longer than three days and/or the each party will have expert evidence from more than 2 experts (see r.26.9(10) and (12)), it seems unlikely that to have been intended as a consequence of r.45.1(4) that all housing cases, of whatever value or complexity, should allocated to the MT.
5. Further, by the same logic, any claim where a party is a protected party (“PP”) could not be allocated to the FT or IT (as claims involving PPs are also exempted from FRC, by r.45.1(6)). This would be inconsistent with r.26.11, providing that the FT is the normal track for road traffic whiplash claims by PPs. Unlike the FT complexity bands for housing cases (r.26.15), where the exemption from FRC is intended to be temporary, this cannot be explained in terms of r.26.11 simply putting in place provision that will become relevant once the exemption comes to an end.

It may, of course, be asked why any of this matters.

While, given the current exemption from FRC, an issue as to whether a housing claim should be allocated to the IT or the FT would be of relatively limited practical consequence:

1. It would have some express procedural consequences not relating to FRC: see Part 28, Sections II and IV.
2. The fact that the claim was allocated to either the FT or the IT may also influence the court’s consideration of other case management issues.
3. Even if the issue were of no practical consequence:
   1. It would still fall to be determined in accordance with the appropriate principles^[3]; and
   2. The development, now, of any practices and/or authority as to the allocation and assignment of housing cases will become relevant to if and when the exemption in r.45.1(4) is removed as planned.
4. In any event, as set out above, if r.45.1(4) were to mean that the claim could not be allocated to the IT, it would mean that it could not be allocated to the FT either (and so would have to be allocated to the SCT or MT), such that it would in fact have more significant consequences.

It is therefore suggested that it is important that the correct position is set out to courts and that housing cases are allocated to the intermediate track where appropriate.

^[1] It is not clear whether courts have also been declining to allocate to the FT on this basis.

^[2] Indeed, the White Book commentary suggests — referring to the equivalent provision in the previous version of PD26 — that “opposed claims under Pt 56 may not be allocated to the small claims track” (56PD.16.2, emphasis added).

^[3] Whether the matter were allocated to the FT or to the IT, the court would be required to assign it to a complexity band (r.26.14(1)), despite the is fact that such assignment is of no consequence given the exemption from FRC.