Following the recent amendment to the Civil Procedural Rules (CPR) on 1 October 2023, with the introduction of a new "intermediate" track, neatly sandwiched between the fast track and multi-track, the way in which cases will be categorised and managed by the courts has changed. So what does this mean for those embarking on litigation?
Under amended Part 26 of the CPR, the scope of the small claims regime (for claims of less than £10,000) and the fast track (the default track for cases that are not a small claim and involve damages below £25,000) remain the same. However, for cases whose value exceeds £25,000, it is only those claims in excess of £100,000 (or are especially complex) that are likely to be allocated to the multi-track. This therefore makes the intermediate track the primary case management track for any claim ranging in value from £25,000 to £100,000.
Pursuant to CPR 26.9(7), the intermediate track is now the normal track where:
• the case includes a claim for monetary relief, the value of which is not more than £100k
• the trial will not last longer than three days
• oral expert evidence at trial is likely to be limited to two experts per party (although, under CPR 28.14(2)(a), a second expert must be reasonably required and proportionate)
• the claim is brought by one claimant against either one or two defendants, or is brought by two claimants against one defendant.
Importantly, claims seeking or including non-monetary relief will not automatically find themselves on the intermediate track, where the court must also deem such an allocation to be in the interests of justice. Additionally, some claims, even if they would otherwise meet the criteria for the intermediate track, must be allocated to the multi-track (such as disputed clinical negligence claims, jury-style claims or certain claims against the police).
But is the way in which these cases will be managed by the court really likely to be re-shaped? And what does this mean for the parties, both in the context of case management and costs?
The case management rules relating to the new intermediate track are set out under Part 28 of the CPR, which continues to make provision for the fast track. Some of the provisions under Part 28 apply equally to both the intermediate and fast track, while some are specific to each. In particular, for intermediate track cases, the court will fix a case management conference and may fix a pre-trial review, rather than making directions without a hearing. This therefore retains a similar case management approach to cases of a certain financial value or complexity which would previously have been allocated to the multi-track.
However, of most significance under the recently amended rules, is that when allocating a case to either the intermediate or fast track, pursuant to CPR 26.14(1), the court must also assign the claim to one of four complexity bands. These bands provide an ascending scale of allowable costs commensurate with the complexity of the claim, to be assessed on a fixed basis under Part 45 of the CPR (together with a new Practice Direction with the tables of costs). This essentially means that for claims that would previously have been allocated to the multi-track, for which there is no fixed costs limit, many of these cases will now be subject to the fixed recoverable costs (FRC) regime under the new intermediate track.
By extending the application of FRCs to a much broader range of cases, namely to less complex multi-track cases under £100,000 damages, the overall aim is to standardise procedure, and to create a degree of certainty in relation to process and costs. In particular, attention is drawn to Tables 12 and 14 under PD 45, applicable to the fast track and intermediate track respectively, with associated grids of costs for the stages of a claim.
However, given the degree of specificity to which cases fall within each complexity band under CPR 26.15 and 26.16, there runs a very real risk that the new rules will be overly prescriptive. Needless to say, it is hoped that the approach adopted under the rules will not fetter the court’s discretion in individual cases which, at first blush, may appear to sit neatly within the scope of the new intermediate track, but still merit allocation to the multi-track.
The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.
Before acting on any of the information contained herein, expert advice should always be sought.
©Melissa Worth, October 2023