1st October 2023 marked an important development in civil litigation with the advent of a new ‘intermediate’ case management track and an update to the Fixed Recoverable Costs (FRC) regime, both of which have significant implications for litigants and potential litigants alike.
The Intermediate Track
In civil courts, claims are allocated to a case management ‘track’ to ensure they are dealt with at the most appropriate court and under the most appropriate procedures. Previously, there were three tracks, but the Civil Procedure Rule Committee has now created a fourth – the ‘intermediate’ track. The available tracks are therefore:
- Small claims track – a simpler procedure generally for claims worth less than £10,000;
- Fast track – usually used for claims worth up to £25,000 with a trial that is unlikely to be longer than one day;
- Intermediate track – a new track for claims valued between £25,000 and £100,000, but with a simpler procedure than the multi-track; and
- Multi-track – usually used for complex claims worth over £100,000 (previously, over £25,000).
In general terms, the intermediate track will apply to cases with only one or two claimants or defendants, and where the trial will be up to three days long. The position on experts sits between that of the fast track and multi-track, with oral expert evidence being limited to two experts per party. The aim of introducing this new track is to simplify case management in cases that are valued above £25,000, but whose complexity does not require the full procedures of the multi-track, to which they would previously have been allocated prior to the recent changes.
New Fixed Recoverable Costs Regime
The Fixed Recoverable Costs (FRC) regime previously had a limited scope, but the updates mean it now applies to the vast majority of civil cases up to £25,000, and a wide range of civil cases with a value up to £100,000 (although there are still many exceptions). The regime sets a limit to the legal costs recoverable by the successful party from the unsuccessful party at different stages of litigation.
The value of FRC for the small claims track is quite restricted. For the fast and intermediate tracks, however, the new regime splits FRC into four ‘complexity bands’ which determine the recoverable costs, and, ironically, more costs might now be incurred by parties making applications to the court to change bands.
Although the aim of expanding the regime was to give certainty to parties over the costs they may be able to recover, it only limits the recoverable costs, not the costs that legal representatives may charge their clients. This means that a successful party may end up having to pay the remaining portion of their legal bill which has not been recovered from the unsuccessful party. This may not only encourage parties and their legal representatives to manage cases more efficiently, but also to engage in settlement discussions early on in the matter.
Conclusion
The new intermediate track should, in theory, make certain cases more manageable, although many anticipate there may be some teething issues. Equally, the wide application of the new FRC regime and the complexity of some of its exceptions will also be a key consideration for litigants and practitioners and require careful advice, but hopefully lead to more certainty in the long run. Further updates to the Civil Procedure Rules affecting the intermediate track and Fixed Recoverable Costs are due to come into force in April 2024, which may hopefully provide further clarity.
Our team of experts can advise on a range of contentious matters, including how your claim may be allocated and the implications of the new Fixed Recoverable Costs regime. Please contact Partner, Rob Adam or visit our website for more information.
This is only intended to be a summary and not specific legal advice.