In relation to the fast track, Jackson LJ proposes no change and the only suggestion, emanating from claimant representatives, was that there should be better provision for the costs of pre-action disclosure applications as recommended by the Court of Appeal in Sharp v Leeds City Council.
Interim applications in the fast track
CPR 45.29H currently fixes costs for such matters and provides for “one half of the applicable Type A and Type B costs.”
Type A is for preparation and Type B is for advocacy and each type of costs is £250.
In relation to noise-induced hearing loss claims and fast track band 4 cases, the report proposes that two thirds, rather than one half, of Type A and Type B costs be recoverable.
Thus the fee would be £166.66, instead of £125, an increase of £41.66 which will probably not open the floodgates.
Band 4 in the fast track is in many ways more like band 1 in the intermediate track than it is to its fast track siblings.
Fast track band 4 cases will include:
- Employers’ liability other than noise-induced hearing loss claims.
- Any particularly complex tracked possession or housing disrepair claims.
- Property disputes.
- Professional negligence claims.
- “Other claims at the top end of the Fast Track.”
The costs of any preliminary issue trials should be recovered separately, but are strongly discouraged in the fast track.
The report points out that limitation is sometimes tried as a preliminary issue in employers’ liability disease claims but states that this is generally unwise as:
- There is much overlap of evidence between limitation and liability.
- The litigation will get hopelessly bogged down if the limitation decision is appealed.
- To have two trials of a fast track case drives up costs and is disproportionate.
- If the claimant wins on limitation and then loses on liability, the first trial has been a waste of time.
The fixed recoverable fee for an interim injunction application in the fast track should be £750.
All fast track claims will be subject to fixed recoverable costs, even where the claim is only, or primarily, for non-monetary relief.
With reference to the fixed costs grid, Jackson LJ says:
“There is obviously some difficulty in applying the above table to claims for, or including, non-monetary relief. The court must, I am afraid assign a value to such relief. I propose that a claim for a declaration or injunction should be treated as the equivalent of a claim for £10,000, with the court having power to vary that figure upwards or downwards.
“For example, in a housing disrepair claim where the defendant is ordered to carry out repairs with a value of £20,000, the injunction requiring such works should be treated as if it were an award of £20,000.”
The report states that the new intermediate track, for claims valued at between £25,000 and £100,000, should apply to claims which are principally for monetary relief, such as damages or debt, and will include cases where declarations are sought “largely to support claims for monetary relief.” It will not be possible evade the regime by including incidental claims for declaratory relief.
In exceptional circumstances a claim for non-monetary relief may be assigned to the fixed recoverable costs scheme, where it is necessary to promote access to justice, and two examples are given:
- If individual householders are claiming an injunction to restrain private nuisance caused by a nearby industrial enterprise, they may not be able to proceed unless their adverse costs risk is limited by a fixed recoverable costs regime.
- Individuals of modest means bringing defamation claims because of material on the internet may only feel comfortable if their adverse costs risk is limited by fixed recoverable costs.
Jackson LJ also suggests that in certain categories of litigation, “where emotions are apt to run high, parties may need to be protected from their own enthusiasm for the fray” where “the straitjacket of the Intermediate Track may save them from ruinous litigation.”
He gives as examples disputes about family businesses or boundary disputes between neighbours, where the disputed land has no great value.
It may be that declaratory, and not monetary, relief is the main remedy sought in such cases, but they may still go into the fixed recoverable costs regime.
These should be made at the case management conference (CMC), but if any application is necessary after the CMC then the rules should provide that:
- All applications and documents filed in support must be concise.
- The respondent must answer in writing within seven days of service of the application notice and the response must be concise.
- Any reply from the applicant must be provided within two business days of service of the response and be concise.
- The court will deal with an application without a hearing unless it considers it necessary to hold one and in appropriate cases that hearing may be by telephone.
- The court will decide who shall pay the costs of any interim application and shall summarily assess them and any such costs will be in addition to fixed recoverable costs.
Jackson LJ accepted that the court must control the scope and number of interim applications to avoid procedural gamesmanship, for example repeated applications by a wealthy party for specific disclosure or for answers to CPR 18 requests.
This would be dealt with as unreasonable litigation conduct warranting an order for indemnity costs, which will now be a fixed uplift on costs, of either 30% or 40% – that issue remains to be decided.
As to what constitutes unreasonable litigation conduct, Jackson LJ refers to the case of Dammermann v Lanyon Bowdler LLP.
The report states that if the new proposals work satisfactorily then the Civil Procedure Rule Committee may decide to expand the scope of the intermediate track to include monetary claims above £100,000 and to include claims for non-monetary relief.