You can never have too many tracks, said no one ever. Apart from Sir Rupert Jackson who recommended that the small, fast and multi-track should be (and is from the 1st of October 2023), augmented to include a new intermediate track.
Putting aside observations about the fast track actually being rather slow and the multi-track being only one track, (both clearly named to confuse Litigants In Person) this article looks at the way the new Civil Procedure Rules (CPR) part 26.9 reshapes the way cases are categorised and managed.
The small claims regime remains as it is. The fast track becomes the default for cases that aren’t a small claim and involve damages below £25,000. The multi-track now serves as the primary track for cases exceeding £100,000. The intermediate track sidles into platform 3 between the fast and multi tracks to create the track for cases ranging from £25,000 to £100,000, with certain exceptions that I will highlight below.
Essentially, CPR 26.9 designates the intermediate track for situations where (and I paraphrase):
(a) The claim isn’t suitable for the small or fast tracks.
(b) The claim involves monetary relief, and its value doesn’t exceed £100,000.
(c) The court considers that the trial can be wrapped up in three days or less.
(d) Expert oral evidence won’t involve more than two experts per party.
(e) The claim can be managed under the procedure in section iv of CPR part 28.
(f) the claim is brought by one claimant against either one or two defendants or is brought by two claimants against one defendant.
(g) the platform is long enough for a 12-carriage train.
Importantly, claims seeking (or including) non-monetary relief won’t automatically find themselves on the intermediate track. The court must also deem such an allocation to be in the interest of justice. Point (g) above may be inaccurate.
Some claims, even if they would otherwise meet the intermediate track criteria, must be allocated to the multi-track. These include:
(a) Mesothelioma claims or asbestos lung disease claims.
(b) Claims that involve clinical negligence, unless both breach of duty and causation have been admitted and the claim would typically fall under the intermediate track.
(c) A claim for damages in relation to harm, abuse or neglect of (or by) children or vulnerable adults.
(d) A claim that the court could order to be tried by jury if section 66(3) of the County Courts Act 1984(a) or section 69(1) of the Senior Courts Act 1981 apply.
(e) Certain claims against the police which I won’t detail here.
What is easy to miss as the Champagne bottle of fate swings slowly on its ribbon to christen the locomotive of change, is that CPR Part 45 (Fixed Costs), has been largely re-written. A new Practice Direction (PD) 45 sets out the relevant tables of costs.
The fast track has four complexity bands with an associated grids of costs for the different stages of a claim (see Table 12 in PD 45). The intermediate track also has four complexity bands with an associated grid of costs for the stages of a claim (see Table 14 in PD 45).
Fixed Recoverable Costs (FRC) will apply to all cases in the fast track and the new intermediate track, with exceptions, some of which are listed above as having been automatically allocated to the multi-track. Notably, implementation in relation to housing claims is postponed for two years while long-anticipated changes are made to housing law. The legal equivalent of engineering works at a weekend.
Two sets of FRC may be calculated when a party is successful in both defending a claim and also bringing a successful counterclaim.
So, as I run out of railway related analogies, I bring this article to an end. Will the new additional track speed up the inordinate amount of time claims take to reach their final destination? I doubt it. The underinvestment in HMCTS represents a signal failure (the adjective not the noun). The intermediate track is an exercise in trying to standardise and create a degree of certainty in relation to process and costs for those involved. Let us hope it does not create additional administrative demands on an already under-staffed court system that is, through no fault of its own, running out of steam and hitting the buffers.
There, got another couple in after all…
The civil team at Becket Chambers provides representation across the full range of small, intermediate, fast and multi-track trials. If you require advice or assistance, do not hesitate to contact our team at firstname.lastname@example.org.