Many readers will no doubt be familiar with the court tracks in civil litigation. Previously these were the small claims track, fast track and multi-track. The track system has been extended with the introduction of the intermediate track on 1st October 20231. The aim of this article is to highlight the key changes which the introduction of the intermediate track has brought about. This article will look at when the intermediate track will apply, how it will apply, the introduction of complexity bands and how charges are incurred.
The purpose
The intermediate track is designed to cover lower value cases which, under the previous rules, would have been allocated to the multi-track (i.e., for cases over £25,000 but lower than £100,000.) The aim of the legislation behind the intermediate track – the Civil Procedure (Amendment No.2) Rules 20232 – is to ensure that there is more certainty in the amount of costs to be incurred and in turn to make sure that costs are proportionate across civil law claims.
When will the intermediate track apply
The intermediate track will apply where, for instance, a trial is not expected to last longer than 3 days or where oral expert evidence is likely to be limited to a maximum of 2 experts per party. The intermediate track will also apply where the claim is brought by 1 claimant against up to 2 defendants, or the claim is brought by up to 2 claimants against 1 defendant.
When will the intermediate track not apply
If a claim is brought for a remedy other than money, it is unlikely to be allocated to the intermediate track unless it is considered by the court to be in the interests of justice. Despite the changes for lower-value cases, the multi-track remains unchanged for claims with a likely value of over £100,000. The court has the power to allocate more complex cases to the multi-track if it does not consider the intermediate track appropriate.
Application key points – how does it apply to experts?
The intermediate track continues fixed fees for reports in road traffic accidents (‘RTAs’), where there are soft tissue injury claims and whiplash injuries. Where these claims arise, the cost of obtaining the first report from an accredited expert selected from the MedCo Portal is £180. The cost for a further report is as follows:
1. Consultant Orthopaedic Surgeon - £420
2. Consultant in A&E medicine - £360
3. GP registered with the GMC - £180
The intermediate track also explicitly states that it applies to claims where there are no additional factors which make the claim inappropriate for the intermediate track. Unhelpfully these factors are not defined yet and it is likely that these ‘additional factors’ will be fleshed out by case law!
Some cases are excluded from the intermediate track, these include:
∙ Mesothelioma/asbestos claims.
∙ Clinical negligence claims, unless both breach of duty and causation have been admitted.
∙ Harm, abuse or neglect claims of or by children or vulnerable adults.
∙ Various claims against the police.
It may seem that a breach of the duty of care and causation will be rarely admitted by those defending claims, however, dental negligence claims may be a good exception to this. Breach of duty and causation may be admitted in full, yet the patient may have been likely to lose their teeth in any event It could well be the case that a similar approach is taken in other clinical negligence claims.
Fixed recoverable costs
Following consultations by the Ministry of Justice, fixed recoverable costs apply to the intermediate track, where proceedings are issued on or after 1st October 2023. Personal injury and disease claims are the exception here. Fixed recoverable costs will instead apply, first, to personal injury claims where the claim arises on or after 1st October 2023 and second, to disease cases where the letter of claim was sent after 1st October 2023.
The Civil Procedural Rules (‘CPR’) for civil litigation allow courts to consider a claim greater than fixed recoverable costs in exceptional circumstances. These include where a party or witness is vulnerable and that vulnerability requires more work to be done. For this additional work, the claim can be for an amount at least 20% greater than fixed recoverable costs.
Tips for claiming disbursements
The use of the expert and the cost must be justified. Where medical expert report fees are not set out in the intermediate track, they are to be decided by what is reasonable and proportionate as disbursements. The courts will only allow disbursements which have been reasonably incurred so readers should be mindful about what is proportionate, given the severity and size of the claim. Two points may be helpful here. First, the fixed fees in RTAs give an indication: Orthopaedic Consultant - £420, A&E Consultant - £360. Second, fees received for previous reports provide a suggestion when quoting for fees or considering an instruction - if the fee proposed is wildly lower or higher than this it should be checked. This is because there is a risk that judges may not consider these sums reasonable. The following factors are considered by the court to decide whether the cost will be reasonable and proportionate and so recovered in full:
1. Do the costs bear a reasonable relationship to factors such as the sum in issue?
2. How complex is the litigation?
3. Has additional work been generated by the conduct of the paying party?
4. Is there extra work or expense incurred due to the vulnerability of a party or witness?
Complexity bands
The disbursements will also be checked alongside the complexity band for the litigation. The intermediate track has four complexity bands, with complexity band 1 for the simplest cases and complexity band 4 for the most complex. More complex cases will recover higher fixed recoverable costs. The parties may agree on a complexity band but the court retains discretion to assign whatever band it sees as appropriate.
The simplicity of complexity band 1 means it is unlikely that costs here will be questioned. With complexity band 4 being the most complex this also means that high costs are expected. The real battleground will likely be complexity bands 2 and 3. Here there may be challenges and the expert and the cost must be justified.
Under the intermediate track, each of the four complexity bands has fixed recoverable costs for each of the specified stages. These range from Stage 1 to Stage 15. Costs can be awarded in addition to disbursements, depending upon the complexity band given. The risk of fixed recoverable costs applying to cases allocated to the intermediate track may encourage parties to settle. Using the name ‘complexity band’ is very appropriate here. The proposed new system does not come across as ‘simple’!
Relevant factors for experts
Importantly, medical expert reports are to be limited to no more than 20 pages. This excludes any necessary photographs, plans or technical articles which are attached to the report. Although this limits the size of the reports, the page limit for attachments is unlimited. This may encourage more annexed documents and images to be included in reports. A good index will be helpful here. The total length of witness statements should also not exceed 30 pages in the intermediate track. The courts are keen to reduce reading material length – this is nothing new – experts should assist the court and conciseness supports this process.
Although the limit for reports is 20 pages, the CPR introduces the limit with the words “unless the court orders otherwise”. This caveat should not be relied upon – it is unlikely courts will allow a greater limit very often. Three strategies for the page limit could be adopted: first, when being instructed, a term could be inserted into the terms and conditions, requesting to be informed promptly if allocated to the intermediate track. Secondly, as a safeguard, when writing reports, experts should ask their instructing party whether they are subject to the 20-page limitation. This will help dictate the level of the quote to be made for fees. Third, if the limit applies, consider whether you can help the court on matters within your expertise in the 20-page limit. It is helpful for solicitors to know as soon as possible.
Reaction
The intermediate track is an important development. It is one of the larger changes to litigation in recent years and it will be important to keep an eye on this development. The 20-page limit for reports is likely to be strictly followed and fixed costs will become the new norm on the intermediate track. The intermediate track is an exercise attempting to standardise and create a degree of certainty about process and costs for those involved. It remains to be seen whether this will be the case. Like all recently introduced laws, there may be changes made through case law as the new legislation matures.
Checklist to consider:
1. The track
2. Experts
3. Other expertise needed
4. Impact of fixed costs on your fees
5. Impact of the track on report/witness statement length
References:
[1] https://www.legislation.gov.uk/uksi/2023/572/contents/made
[2] https://www.legislation.gov.uk/uksi/2023/572/pdfs/uksi_20230572_en.pdf
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