Insights
21 Mar 24
Allocation to track
Emma Jeffries
The FRC extension saw the introduction of a new allocation track. Louise Hawkfield summarises the changes.
The extension of fixed recoverable costs on 1 October 2023 saw the introduction of a new track for the purposes of allocation — the intermediate track. There are now therefore four possible tracks that a claim may be allocated to — small claims track; fast track; intermediate track; multi track.
The rules dictating what a ‘small claim’ is and the costs entitlement that flows from those claims are unchanged and were already subject to fixed costs. With the fast track, whilst nothing has changed about what makes a claim a ‘fast track’ claim, the new rules expand the application of fixed costs. Previously, only ‘post-MoJ portal’ motor and EL/PL personal injury claims were subject to fixed costs but post 1 October 2023, almost all fast track claims are subject to fixed costs. Fixed costs will also apply to claims allocated to the intermediate track whereas claims allocated to the multi-track will continue to be subject to standard basis or indemnity basis costs as appropriate.
There are a number of factors which must be taken into account when considering the appropriate track for a claim and the court shall have regard to:
- the financial value, if any, of the claim;
- the nature of the remedy sought;
- the likely complexity of the facts, law or evidence;
- the number of parties or likely parties;
- the value of any counterclaim or additional claim and the complexity of any matters relating to it;
- the amount of oral evidence which may be required;
- the importance of the claim to persons who are not parties to the proceedings;
- the views expressed by the parties; and
- the circumstances of the parties.
Note that it is for the court to assess the financial value of a claim and in doing so it shall disregard any amount not in dispute; any claim for interest; any costs; any contributory negligence; and where the claim is, or includes a claim for non-monetary relief, any amount prescribed by rule 45.45(1)(a)(ii) and rule 45.50(2)(b)(ii) which are the amounts equivalent to a damages sum for the purposes of calculating fixed costs.
CPR 26.9 sets out the scope of each track and can be summarised as:
| Small claims | Fast track | Intermediate | Multi track |
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(1) (a)any claim for personal injuries where— (i) the value of the claim is not more than £10,000; and (ii)the value of any claim for damages for personal injuries is not more than— (aa) £5,000 in a claim for personal injuries arising from a road traffic accident, except as provided in sub-paragraph (bb); (bb) £1,000 in a claim for personal injuries arising from a road traffic accident, in any of the circumstances specified in rule 26.10; or (cc) £1,500 in any other claim for personal injuries.
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(5) The normal track (a) for which the small claims track is not the normal track; and |
(7) The normal track where (a) the claim is suitable for neither the small claims track nor the fast track; |
(10) A claim must be allocated to the multi-track where that claim is— (a) a mesothelioma claim or asbestos lung disease claim; (b) one which includes a claim for clinical negligence, unless— (i) the claim is one which would normally be allocated to the intermediate track and (ii) both breach of duty and causation have been admitted; (c) a claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults; (d) a claim is one the court could order to be tried by jury if satisfied that there is in issue a matter set out in section 66(3) of the County Courts Act 1984(3) or section 69(1) of the Senior Courts Act 1981(4); or (e) a claim against the police which includes a claim for— (i) an intentional or reckless tort; or (ii) relief or a remedy in relation to a breach of the Human Rights Act 1998(5).
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(1) (b) any claim which includes a claim by a tenant of residential premises against a landlord where— (i) the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises (whether or not the tenant is also seeking some other remedy); (ii) the cost of the repairs or other work to the premises is estimated to be not more than £1,000; and (iii) the value of any other claim for damages is not more than £1,000;
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(b) which— (i) is a claim for monetary relief, the value of which is not more than £25,000; or (ii) is or includes a claim for non-monetary relief and— (aa) if the claim includes a claim for monetary relief, the value of the claim for monetary relief is not more than £25,000; (bb) the claim meets the criteria in paragraph (6)(a) and (b); and (cc) the court is satisfied that it is in the interests of justice for it to be allocated to the fast track.
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(b) the claim includes a claim for monetary relief, the value of which is not more than £100,000 |
11) Paragraph (10)(e) does not apply to— (a) a road accident claim arising from negligent police driving; (b) an employer’s liability claim; (c) any other claim for an accidental fall on police premises
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(1) (c)in relation to claims under the Renting Homes (Wales) Act 2016(1), any claim which includes a claim by a contract-holder of a dwelling against a landlord where— (i) the contract holder is seeking an order requiring the landlord to carry out repairs or other work to the dwelling (whether or not the contract-holder is also seeking some other remedy); (ii) the cost of repairs or other work to the dwelling is estimated to be not more than £1,000; and (iii) the value of any other claim for damages is not more than £1,000.
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(6) The fast track is the normal track for the claims referred to in paragraph (5) only if the court considers that— (a) the trial is likely to last for no longer than one day; and (b) oral expert evidence at trial is likely to be limited to— (i) one expert per party in relation to any expert field; and (ii)expert evidence in two expert fields.
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(c) the court considers that— (i) if the case is managed proportionately, the trial will not last longer than three days; (ii) oral expert evidence at trial is likely to be limited to two experts per party; (iii) the claim may be justly and proportionately managed under the procedure set out in Section IV of Part 28; and (iv) there are no additional factors, which would make the claim inappropriate for the intermediate track; and
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(12) The multi-track is the normal track for any claim for which the small claims track or the fast track or the intermediate track is not the normal track. |
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(4) Subject to the above, the small claims track is the normal track for any claim which has a value of not more than £10,000. |
(d) the claim is brought by one claimant against either one or two defendants, or is brought by two claimants against one defendant. |
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Rule 26.12(2) and (3) provides that the court must not allocate to the small claims track certain claims in respect of harassment or unlawful eviction. |
(8) Where the relief sought includes a claim for non-monetary relief, the claim shall not be allocated to the intermediate track unless the court also considers it to be in the interests of justice to do so. |
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(9) Subject to paragraph (10), the court may allocate a claim to the intermediate track where it considers it to be in the interests of justice to do so. |
As to procedure, the parties should indicate the appropriate track and complexity band in their directions questionnaire; the court may order an allocation hearing if it thinks necessary; and when, in a claim to which Section VI or Section VII of Part 45 applies (fast track or intermediate track), the court decides the track to which a claim should be allocated or the complexity band to which it should be assigned it shall also consider whether it is in the interests of justice to order that rule 45.5(4) should apply to that claim (multiple claimants rule); and when considering whether it is in the interests of justice to make such an order, it shall have regard to whether the claim of each claimant arises from the same or substantially the same facts and gives rise to the same or substantially the same issues.
It is advisable that when preparing directions questionnaires, as much evidence is provided as possible to justify the value and evidence at this early allocation stage as the costs vary, in some cases quite significantly, between tracks and bands. You can make an application to reallocate a claim to a different track but it will only be successful where there are ‘exceptional’ reasons for doing so. We have seen this wording in the rules before and it opens up a lot of dispute and discretion on the court’s part about what that might mean, but we must assume at this stage that it will be a high bar.
We are all eager to see how the courts approach the allocation of claims to the intermediate track and deal with any disputes between the parties on the numbers of experts or witnesses that may be the deciding factor as to which track is appropriate, so keep an eye out for our insights on this and in the meantime, check out our article on assignment to the different complexity bands.
Emma Jeffries is a Principal Associate and costs lawyer within the niche costs team in Weightmans which is a specialist team dealing with high value, complex costs litigation. Emma has a vast experience of dealing with both claimant and defendant costs issues to include costs arising from catastrophic injury claims; clinical negligence, professional negligence (construction) and commercial litigation.
For further information on the contents of the above article, feel free to reach out to our Fixed Recoverable Costs team at FRCenquiries@weightmans.com.
