HT-2023-000349 - [2024] EWHC 1159 (TCC)

Fecha: 16-May-2024

Transfer to Part 7?

Transfer to Part 7?

CPR Part 8.1(4) provides:

The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate.

There appears to be little guidance on the exercise of this power. The White Book at 8.1.1 states:

Rule 8.1(4) permits the court to order a claim to continue as if the Pt 8 procedure had not been used, for example in a case where a Pt 8 claim has been issued in the mistaken belief that there would be no substantial dispute of fact. In such a case the court will order that the claim continues as a Pt 7 claim, allocate to track and give directions.

In Sleaford Building Services v. Isoplus Piping Systems Ltd [2023] EWHC 969 (TCC) at [71] Mr Alexander Nissen KC sitting as a Deputy Judge dismissed Part 8 proceedings and required the claimant to start again where “not much, if any, of the current Particulars of Claim would remain”. More recently, in TClarke Contracting Limited v Bell Build Limited [2024] EWHC 992, Pepperall J ordered a Part 8 claim to proceed under Part 7 in circumstances where the use of Part 8 was “laden with risk”. It is not entirely clear from the report, but it is reasonable to infer that the claim in that case would have required substantial re-pleading. The Defendant had already filed a defence.FK say that enquiries with counsel in that case have confirmed that the Defendant did not seek dismissal, only that the proceedings should be transferred to Part 7.

As I observed in Berkeley Homes (South East London) v John Sisk and Son Ltd [2023] EWHC 2152 (TCC) at [11], the power under CPR 8.1(4) is essentially a case management power to be exercised in accordance with the overriding objective. It seems to me that all the relevant circumstances should be taken into account, but I regard the following factors as particularly relevant in deciding whether a claim should proceed under Part 7:

Whether this is likely to save or increase costs;

ii)

Whether this is likely to promote or delay the resolution of the proceedings;

In this case, FK urges the dismissal of the Part 8 proceedings. It says that very little will be left of ISG’s pleading and so ISG should start again by issuing fresh proceedings under Part 7. ISG says that it should be permitted to serve revised Particulars of Claim and seeks directions for service of statements of case and the listing of a case management conference. ISG accepts that its pleading will require revision but points out that much of the substance of the argument between the parties will be pleaded in FK’s Defence and ISG’s Reply. ISG also points to the fact that much work on the merits has already been done by both parties.

I accept that ISG’s statement of case is likely to require substantial revision and expansion. Nonetheless the document seems to me to be a reasonable foundation on which ISG can base its Part 7 proceedings. On balance I consider that dismissing these proceedings and requiring ISG to start again is more likely to lead to some delay and increased costs when compared with transferring the current proceedings to Part 7. If I dismiss the proceedings, the litigation timetable will go back to square one, whereas if I transfer the case the Court will remain seised of the matter and I can give directions which may facilitate a more expeditious resolution.

Accordingly, I will order that these proceedings are transferred to Part 7. ISG’s revised Particulars of Claim should be served by 7^th June 2024, and FK’s Defence by 5^th July 2024. Any Reply should be served by 2^nd August 2024. ISG should apply for a case management conference on the first open date in Michaelmas term. An early CMC will enable the parties and the Court to assess the extent to which disclosure and witness evidence will be required in the resolution of this claim.