Lord Justice Jackson’s recommendations and proposals as we all know have had a widespread impact upon the legal industry. His further proposals, as part of his Supplemental Report proposes a new intermediate track which is widely being billed as potentially the biggest change of all.
The proposals are going to be considered by the Lord Chief Justice, Master of the Rolls and the government and are aimed at creating a streamlined system for cases that are of “modest complexity”. For a case to be captured in this track, the proposal is for it to be claims for monetary relief including cases where declarations relating to supporting financial claims are required. It appears that in some certain circumstances (likely to be labelled “exceptional”) non-monetary relief claims may be included. The claims will also need to be valued between £25,000.00 – £100,000.00 and have an anticipated maximum Trial length of 3 days.
The proposed checklist 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 between £25,000.00 – £100,000 but cannot be a Mesothelioma or other asbestos-related lung disease claim (these are specifically excluded)
- Trial length will be a maximum of 3 days
- Maximum of 2 expert witnesses on each side
- No wider factors, such as reputation or public importance make the case inappropriate for this specific track
It is also proposed that if there is a particular reason to assign a case to the track, even though it does not meet the above criteria then it may be able to be assigned to it. Whilst Clinical Negligence practitioners will no doubt be asking whether this will mean clinical negligence claims will be captured within the new track the recommendations within the report are clear on the position. Lord Justice Jackson states that clinical negligence matters “… 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.” For the majority of cases this will mean they will continue to be allocated to the Multi-Track.
The report also highlights other cases that will not be suitable for the track such as some multi-party cases, actions against the police, child sexual abuse claims and intellectual property cases.
It is anticipated that a new Practice Direction will be created to deal with the issues that will arise from the practical issues with allocation to the track and the new complexity bands that are also being proposed. It is anticipated that the following bands will be applicable:-
Band 1 – anticipated that it will 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 – this is believed to be the normal band “with the more straightforward cases going into Band 2 and the more complex cases going in to Band 3.”
Band 4 – this 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.
Within these proposals, when the Claimants prepare a letter of claim they will be required to state what track and band the case should be in and the Defendant will then be required to respond to this 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.
On allocation Judges will allocate to both track and band. Either party will be allowed to challenge the band, but not the track, at any subsequent CMC. If the only reason for the CMC is the dispute over band assignment, then the losing party on that issue will be required to pay £300 to the winner.
It is anticipated that there will be strictly limited exceptional circumstances in which a case could be removed from the intermediate track after the first CMC, as otherwise the certainty as to costs would be lost. However, what is not clear from the proposals is whether there will be the possibility of moving up/down bands i.e. if matters become more complex than originally anticipated or if liability is admitted thus negating the need for liability experts and a shorter Trial length becomes anticipated.
Whilst the report provides significant suggestions regarding the track, practitioners will no doubt be cautious regarding the proposals and the practical (or impractical) ramifications of the proposals.