My understanding of the rules is that a case which is unallocated is effectively a multi track matter. Of course if a claim will be a small claims matter then CPR 31 doesnt apply, but that is when a case is allocated as i understand it.
Now then, heres a problem which presented itself recently with a claim involving a debt purchaser. The value of the claim was circa £4k so well within the small claims limits. The Claimant had mentioned a few documents in the claim form, and the Defendant had been asking for copies of the documents since before proceedings were issued. The Claimant had refused to comply with the request, citing the fact the case would be a small claim on allocation as the reason for refusing.
Now firstly, the CPR Pre action protocols apply to ALL claims including small ones, so there is an expectation of an early exchange of documents BEFORE proceedings start and secondly, where the Claim is based upon a breach of a written contract it is difficult to see 1) how the Claimant can prosecute its claim without the agreement, and 2) how the Defendant can defend such a claim without sight of the agreement.
So, my opponent was arguing small claims and my position was hell no not yet its not, not til allocation and also lets not forget that the CPR clearly requires the Judge to consider all matters relevant on allocation. I had a £1k claim allocated to the multi track before HHJ Chambers QC once, so small claims value doesnt mean automatically small claims track.
Anyway, the case had an application made to the Court for discovery as the Claimant had failed to allow inspection.
The hearing took place and the Court made an order that the Claimant must file and serve all documents needed. The Judge dismissed the contention that the Claim would be a small claim but also pointed out that until a Defence is pleaded the complexity of the case is unclear, also it is impossible to see how a Defendant can plead when there are no documents provided.
While the Judge could have said yes its a small claim in principle, and therefore not allowed costs, that angle was also covered, as the Claimants conduct was such that CPR 27.14(2)(g) would have provided a secondary argument for costs so that the Client wasnt out of pocket.
The Court made an order that the Claimant should pay the Defendants costs of the application. The Judge accepted the submissions which our counsel put forward, and agreed with us on all points. The Judge noted the Overriding objective and said that it could not be furthered in circumstances where the Defendant was effectively being blindfolded by the Claimant. The case of Expandable v Rubin was helpfully cited too, see para 24 of Rix LJs judgment.
It seems to me that if the Claimant doesnt provide the core documents allowing you to plead, and you make numerous requests for access to the documents, then i cannot see a judge refusing to allow you access to the core documents needed to prepare a Defence.
Of course others may disagree with me view, but there does not seem to be a right or wrong answer to this point!!