A practitioners’ guide to the intermediate track 22 December 2023
IN BRIEF
- Provides an in-depth and practical look at the intermediate track, covering the four bands, costs, and questions that are yet to be answered.
- Offers advice and a handy checklist to use when deciding which cases fit the intermediate track
We need to talk about IT. There is a new track in English & Welsh CPR-litigation: the intermediate track (the IT). With its four complexity bands and associated tables of costs, at first blush the track may seem rather more indeterminate than intermediate. Yet, at least conceptually, it’s happily straightforward to understand, although the costs rules will necessitate us all spending more time crossreferencing figures.
The IT is part of a series of revisions made to the CPR by the Civil Procedure (Amendment No 2) Rules 2023 (the 2023amendment). Those revisions apply to a claim where proceedings are issued on or after 1 October 2023 (subject to transitional provisions made in relation to certain personal injury cases).
The changes brought by the amendment are primarily about money; particularly, the extension of the realm of fixed recoverable costs (FRC) in civil litigation. FRC will be familiar to practitioners from their application to cases allocated to fast track and the other categories of cases falling under Part 45 of the CPR. The suite of reforms extend FRC across its terrain. The changes flow from Lord Justice Jackson’s 2017 report on FRC which has been implemented with revisions. In the words of the Ministry of Justice’s (MoJ’s) May 2023 update on the topic, the implemented version of the IT is designed to: ‘Provide greater clarity and better reflect the stages of cases, particularly because the costs for each stage include costs for earlier stages.’
Four tracks
So, how does it all work?
There are now four tracks; small claims, fast, intermediate, and multi. Conceptually it might be thought that this all makes good sense. We have all had multi track cases that weren’t really multi tracks, and cases that were patently fast track save for the value nudging them elsewhere.
The aim of the intermediate track is to capture claims with a value of less than £100,000, triable in up to three days and having two or fewer expert witnesses giving oral evidence on each side. This feeds into both how claims are allocated (see CPR r 26.9) and the mandatory directions applicable in IT cases (see CPR r 28.14).
So, to think of the IT as a less-complex multi-track (as the MoJ update puts it) makes sense while serving as a good ready reckoner for the sorts of complexity we can expect to find there. There will be much to do with this—and arguments that your case really is (or isn’t) a proper, old-fashioned multi track one are to be expected.
Complexity bands
In deciding where to allocate a case, the familiar features found in CPR r 26.13 apply to the IT as they do other tracks. But a new feature is the establishing within the IT (and the fast track) of ‘complexity bands’. This is made clear by CPR r 26.14(1) which states: ‘When a claim is allocated to the fast track or the intermediate track, the court must also assign the claim to a complexity band, unless it is one to which section VIII of Part 45 applies.’ And this allocation to a complexity band fixes the costs rules for the claim. CPR r 26.14(2) and (3) provide:
‘(2) In both Table 1 and Table 2, below, the complexity bands numbered 1 to 4 provide an ascending scale of allowable costs commensurate with the complexity of the claim.
(3) The complexity band to which a claim is assigned shall determine the costs that are to be allowed under Table 12 or Table 14 in Practice Direction 45.’
Hopefully, the parties are able to agree the complexity band of their case (CPR r26.14(4)—though you might think ‘good luck’) and any agreement stands subject to a direction of the court that a claim be assigned to a different complexity band than that agreed by the parties (CPR r 26.14(5)). In telling the parties ‘not this time’ and changing the agreed complexity band the court must have regard to the factors in CPR r 26.13. As was to be presumed, the place to attempt agreement, or flesh out arguments and evidence, on the complexity band is directions questionnaires.
CPR r 26.16 sets out the complexity bands for the IT. This provides: ‘The complexity band to which a claim will normally be assigned in the intermediate track is set out in Table 2.’ Table 2 is reproduced above.
While this language is specific in large part to personal injury, the MoJ’s report makes clear ‘[i]n drafting the new rules, a generic approach has been taken so far as possible such that all categories of case are covered by the same rules’. So property disputes, say, will be governed by this too.
Battles to come
However, as to the band descriptors themselves, three obvious battles loom, each seeming destined to be repeated at least in the near future. The first is between bands 2 and 3—just what constitutes a ‘less complex’ or ‘more complex’ claim? The term is left undefined with no illustrative examples given. The second is precisely what will render allocation to band 2 ‘unsuitable’? (note, this is also a word—and thus a fight—to be repeated in band 4). The third foreshadows still greater risks of satellite litigation. As between bands 3 and 4 what is a ‘serious’ issue of fact or law? (while the drafting suggests the criterion may only apply to personal injury cases, it is likely that judges in determining band disputes outside of that field will be guided by considerations of whether a serious issue of fact or law is present).
‘Serious’ is a curious word, and, respectfully, one out of place. As we have seen, the court must have regard to the factors in CPR r 26.13 in determining a dispute over band allocation. Yet the term serious does not appear there. For. example, sub-rule (c) includes ‘the likely complexity of the facts, law or evidence’ while sub-rule (g) states as a matter for consideration ‘the importance of the claim to persons who are not parties to the proceedings’. For their part, factors (h) and (i) focus on the views and circumstances of the parties.
Now it may be that determining what a ‘serious’ question of law is does not trouble the courts in many cases, for example if the authorities are clear then it would be surprising to find the issue of law serious. But what of a ‘serious’ issue of fact, especially by reference to the factors CPR r 23.16? In any event, experience shows that while an issue of law may not be ‘serious’ in the sense that it is settled, that does not mean it is not complex. Are such cases to fall within bands 3 or 4? The contents of the bottle labelled ‘serious’ will need to be determined.
Costs
In order to facilitate this regime, part 45 has basically been re-written and a new practice direction (PD) 45 instated. There is far too much detail for us to go into in the space available, and practitioners will have to spend time in CPR r45.49 to 45.51 as well as the new PD in particular. At the broadest level:
i. The stated costs apply save for cases of exceptional circumstances: CPR r 45.9.
ii. So long as the case is not multi track, the only costs allowed in any claim which would normally be or is allocated to the intermediate track are the fixed costs in table 14 of the PD and certain disbursements: CPR r 45.50.
iii. There are up to 14 stages in table 14; from pre-action to settlement, each with prescriptive maximum costs allowed, based on the applicable complexity band and the level of damages.
iv. For the purpose of table 14, damages are prescriptively defined: CPR r 45.50(2). In relation to non-monetary claims damages are set as follows:
- £25,000 in a claim assigned to complexity band 1;
- £50,000 in a claim assigned to complexity band 2;
- £75,000 in a claim assigned to complexity band 3; and
- £100,000 in a claim assigned to complexity band 4; (CPR r 45.50(2)(ii)).
v. For mixed claims, the exercises are combined (see CPR r 45.50(2)(iii)). That this may be artificial is nothing to the point.
vi. The court retains a discretion as to the costs order to be made including whether an order for costs relates only to a distinct part of the proceedings: CPR r 44.2.
vii. The other tables (there are 16) refer to specific and/or discrete issues.
Currently it is anticipated these will be reviewed for inflation every three years, says the MoJ.
Originally published in the New Law Journal.
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