April 2, 2019

Fixed recoverable costs: Expansion of fast track to include ‘intermediate’ cases

The Ministry of Justice has commenced a consultation on extending the fixed recoverable costs regime (FRC) to incorporate an expanded fast track including 'intermediate cases'.

These cases will be identified using certain criteria, and will not be suitable for hearings before the High Court due to "their relatively low value and complexity".

The full consultation document can be found here.  Consideration of the issues with 'intermediate' cases is set out within Chapter 5.

Expansion of the fast track to include 'intermediate' cases

Lord Justice Jackson's report initially proposed a new intermediate track.  The Government agrees that "there is a need to act in order to keep litigation costs proportionate in lower multi-track cases", but that the creation of a new track is unnecessary. Instead, the Government suggests expanding the fast track to include these 'intermediate' cases.

The following criteria were proposed by Lord Justice Jackson to identify the 'intermediate' cases:

  • 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 last longer than three days.
  • There will be no more than two expert witnesses giving oral evidence for each party.
  • The case can be justly and proportionately managed under an expedited procedure (described in section 3 below).
  • There are no wider factors making the case inappropriate for intermediate assignment, such as public interest.
  • The claim is not for mesothelioma or other asbestos related lung diseases.

Cases which would not fit the criteria include mesothelioma cases, some complex PI and professional negligence claims, clinical negligence cases (unless both breach of duty and causation are admitted at an early stage) and some multi-party cases, actions against the police, child sexual abuse cases and intellectual property cases.

The proposals recommend a streamlined procedure for intermediate cases:

  • Statements of cases no longer than 10 pages
  • Written witness statements limited to 30 pages
  • Standard disclosure in PI cases, and only those documents relied upon (and Court ordered documents) in non-PI cases
  • Expert reports limited to 20 pages
  • Oral expert evidence to be time-limited, and restricted to one expert per party (more if reasonable)

The four bands of complexity suggested for intermediate cases are:

  1. Band 1: the simplest claims that are just over the current fast track limit, where there is only one issue and the trial will likely take a day or less
  2. Band 2: the ‘normal’ band for intermediate cases
  3. Band 3: more complex intermediate cases
  4. Band 4: the most complex, with claims such as business disputes where the trial is likely to last three days and there are serious issues of fact/law to be considered.

For PI cases it is said that the bands will be used as follows: "straightforward, quantum-only cases will generally go into Band 1. Where both liability and quantum are in dispute, either Band 2 or Band 3 will be used. Band 4 will be used for cases where there are serious issues on breach, causation, and quantum (but which are still intermediate cases".

For non-PI intermediate cases, the majority will fall into Band 2 or 3. Band 1 will apply to straightforward cases where there is only one issue in dispute, such as providing a debt and more complicated cases will fall into Band 4.  

The consultation seeks views in particular on whether greater certainty is required in relation to which cases are suitable for each band.

The table sets out the FRC for the four bands. The shaded boxes are cumulative totals, while the unshaded boxes are separate sums for those items, if carried out.

The Government proposes implementing the figures as recommended. However, they are seeking views in particular on "whether the 4-band structure is appropriate, or whether Bands 2 and 3 should be combined, given the closeness of the proposed figures". If respondents favour combining the bands, the Government would like suggestions as to how this might be achieved.

Part 8 claims

The Government proposes that Part 8 claims should not be considered as 'intermediate' cases until the reforms have been operative for some time.

Court fees

The Government proposes that the existing multi-track court fees will be retained for the intermediate cases – "at least until the reforms have had time to bed in."

Next steps

The consultation will conclude on 6 June 2019, and a response to the consultation is due to be published three months thereafter.