EWJ Dec 2023 - Journal - Page 7
On the Right Track?
The Intermediate Track Explained
When a claim is issued at court, it is assigned to a 'track'. Depending on the track, a claimant can be
limited in significant ways – it may be limited to the amount of legal costs it can recover if successful and/or
can only rely on limited evidence to prove its claim. Previously, there were three tracks depending on the
value or complexity of the claim: small claims track, fast track and multi-track.
What is the intermediate track?
On 1 October 2023, The Civil Procedure
(Amendment No.2) Rules 2023 came into force, and
the new intermediate track was introduced. The intermediate track is for claims valued at £25,000 £100,000 in damages and are less complex than those
allocated to the multi-track but more complex than
those allocated to the fast track.
The fixed costs applicable to each track will depend
upon the stage of the claim and the complexity band
that the claim has been allocated. Claims which are assigned a higher complexity band and/or are closer towards trial will generally have greater cost recovery,
whereas claims which are assigned a lower complexity band and/or are further from trial will generally
have smaller cost recovery.
Fixed recoverable costs (FRC) apply to the intermediate track, meaning the costs you can recover from
your opponent for various stages of the proceedings
are capped to those set out in the new Practice Direction 45. Therefore, if you issue a claim after 1 October
2023, you should assess whether bringing a claim is
worthwhile (as, if you win, it is likely that you will
recover a lower amount of costs than before).
So if I win my case, I won't get my legal costs back?
If you win, you will likely be able to recover some (but
not all) of your legal costs from your opponent, however, this depends upon the amount of legal costs incurred. The amount of costs that you can recover
from your opponent for various stages of the proceedings are capped at fixed levels set out in the new
rules. This includes capped amounts that can be
recovered in respect of barristers' fees.
What kind of cases will this affect?
The intermediate track will cover a wide range of
property claims, including claims for monetary relief
(such as claims for commercial rent arrears, terminal
dilapidations claims and boundary disputes) and
claims for non-monetary relief where the judge decides that it is in the interests of justice to allocate such
claims to this track.
What should I be doing differently?
1. Consider methods of Alternate Dispute
Resolution (ADR)
In certain cases, ADR, such as arbitration or mediation, can be a more appropriate option than issuing a
claim. ADR is also advantageous because it does not
have a fixed cost regime (i.e. if an arbitrator makes an
award in your favour, your ability to recover your legal
costs is not as fixed as if your claim is allocated to the
intermediate track).
It is important to note that claims for possession,
disrepair and unlawful eviction in respect of residential properties are excluded from the FRC regime
(unless the claim in respect of the residential property
arises from a boundary dispute).
2. Help your lawyers minimise time and cost
If you decide to use litigation to resolve your dispute,
helping your lawyers minimise the time incurred on
your matter will reduce your legal costs (and make
them more likely to fall within the bands set out in the
new Practice Direction 45). We recommend providing your lawyers with a clear summary of all the facts
(along with all relevant documentation) upon instruction so they have all the information they need
to start working on your claim.
What are the key changes?
To be allocated to the intermediate track, claims will be
tried within three days, each party will have at most
two expert witnesses, with strict page limits for expert
reports and witness statements.
Once a claim is allocated to the intermediate track, it
will be assigned to one of four complexity bands as
summarised below:
l Band 1: for debt matters and simple claims with
only one issue in dispute; a trial is anticipated to take
one day or less;
If you have any questions about this article, please
contact Şenay Nihat or Kate Atkinson.
l Band 2/3: for claims where there is more than one
issue in dispute; less complex claims will be allocated
to band two, and more complex claims will be
allocated to band three; and
Author(s)
Şenay Nihat
Principal Associate - Barrister, London
l Band 4: for most complex claims where serious
issues of fact/law are to be considered; a trial is
anticipated to take three days.
Kate Atkinson
Associate - London
www.gowlingwlg.com
EXPERT WITNESS JOURNAL
5
DECEMBER 2023