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The new intermediate track: scope and procedure

This piece does not deal with the costs figures; that is for another piece.

As part of his Supplemental Report on Fixed Recoverable Costs, which will be considered by the Lord Chief Justice, Master of the Rolls and the government, Jackson LJ has proposed a new intermediate track.

This new track is a streamlined system for cases of no more than “modest complexity” valued at between £25,000 and £100,000, and lasting no more than three days at trial.

It will apply to claims that are principally for monetary relief – that is damages or debt – and will include cases where declarations are sought mainly to support the financial claim. It will not be possible to evade the scheme by including incidental claims for declarations. In exceptional circumstances a claim for non-monetary relief may be included in the track if that is necessary to provide access to justice.

Examples given in Jackson LJ’s report include individuals of modest means bringing defamation claims because of material on the internet and households seeking an injunction to restrain a private nuisance by a nearby industrial enterprise. “Modest means” is not defined and this may go no further, as means testing by the court and the need of the parties to obtain evidence is itself time consuming and expensive. It was never brought in for qualified one-way costs shifting, even though recommended by Jackson LJ.

The proposed criteria for allocating a case to the intermediate track are:

  • The case is not suitable for the small claims track or the fast track.
  • The claim is for debt, damages or other monetary relief, no higher than £100,000.
  • If the case is managed proportionately, the trial will not exceed three days.
  • No more than two expert witnesses per side giving oral evidence.
  • The case can be justly and proportionately managed under the new expedited procedure (see below).
  • There are no wider factors, such as reputation or public importance, which make the case inappropriate for this track.
  • Mesothelioma and other asbestos-related lung diseases are excluded.
  • There are particular reasons to assign a case to the track, even though it does not meet the above criteria.

Clinical negligence

Clinical negligence claims above £25,000 are, in principle, covered, but the report says that such claims:

“… will seldom be suitable for the Intermediate Track, unless both breach of duty and causation have been admitted at an early stage. The Multi-Track will be the normal track for clinical negligence claims above £25,000.00.” (Paragraph 3.5, page 102 of the report).

Other cases that will generally be unsuitable for the track include:

The complexity bands

Band 1 is likely to include quantum only personal injury claims, debt matters and simple claims where there is only one issue and the trial will take a day or less.

Bands 2 and 3 will be the normal bands “with the more straightforward cases going to into Band 2 and the more complex cases going in to Band 3.”

Band 4 will be for the most complex cases, for example a business dispute or an employers’ liability claim where there are serious issues of fact/law and the trial is likely to last three days.

A new Practice Direction will deal in detail with these matters.

Allocation to track and band

Claimants must state in the letter of claim what track and band the case should be in and the defendant must do so in the letter of response.

If the case settles before issue or allocation without agreement as to the appropriate track and band, then the judge assessing costs will decide the point.

Note that pre-action costs in an unissued case, as well as issued cases, will be subject to fixed recoverable costs.

On allocation the judge will allocate to both track and band. Either party may challenge the band, but not the track, at the subsequent case management conference. If the only reason for the case management conference is the dispute over band assignment, then the losing party on that issue pays £300 to the winner. There will be strictly limited exceptional circumstances in which a case can be removed from the intermediate track after the first case management conference, as otherwise the certainty as to costs will be lost.

It is not clear whether there will be power to move bands. It would seem sensible to be able to move down, but not up, bands, so that costs exposure could be reduced, but not increased. Thus a three day case becomes a one day case because of an admission of liability. It would make sense to move it from Band 4 to Band 1.

However one side’s costs exposure is another side’s costs recovery and so the certainty issue cuts both ways.

Procedure

Statements of case

Statements of case are to be ten pages maximum, with the court being able to order the claimant to redraft to bring it within this limit. Core documents are to be served at the same time.

Case management conference

The court will:

  • Review and approve a list of issues.
  • Resolve disputed document requests.
  • Consider alternative dispute resolution (ADR).
  • Give directions and fix a date for trial and a date for any pre-trial review.
  • Identify matters on which oral evidence is to be given.
  • Limit the number of factual witnesses using the powers contained in CPR 32.2(3).
  • Seek to design case management directions so as to have the trial completed in one day.

Disclosure

Non-personal injury cases

CPR 31.5(3) to (8) shall not apply. Each party shall disclose:

  • The documents upon which it relies.
  • Any other documents or classes of documents ordered by the court at the case management conference.

The parties shall exchange document requests at least seven days before the case management conference.

Personal injury cases

There is no change in personal injury cases. Standard disclosure remains as now.

Factual evidence

Written witness statements are to stand as evidence-in-chief, with the witness statements for all witnesses of a party limited to 30 pages, so a maximum of 60 pages for both parties.

Expert evidence

Oral expert evidence is limited to two witnesses per party, but the court should aim to have only one per party. Each expert’s report is limited to 20 pages plus photographs, plans, and academic and technical articles.

Trial

The court will set time limits for oral evidence and submissions.

Applications

In so far as possible, all applications should be made at the case management conference and after 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. 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 them. The hearing may be by telephone.
  • The court will decide who shall pay the costs of any interim application and summarily assess them and such costs orders will be in addition to fixed recoverable costs.

Hand down of judgment

If judgment is reserved then there needs to be a separate hand down hearing, but the parties or advocates will not need to attend if all consequential matters have been agreed.

Underwoods Solicitors Kerry Underwood

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