By Fraser Barnstaple, Underwriter at Legal Futures Associate Temple Legal Protection
By now you will most likely be somewhat familiar with fixed recoverable costs and the new regime to be introduced on 1 October 2023. One important change is the introduction of an intermediate track to which fixed recoverable costs will apply from that date. Below is a closer look at how this will work.
What is the intermediate track?
The intermediate track for fixed recoverable costs (FRCs) will be allocated cases worth no more than £100,000 but more than £25,000. There are some case types which must
be allocated to multi-track and will thus be excluded from
the new FRCs. These are:
- Mesothelioma or asbestos claims
- Clinical negligence claims, unless both breach of duty and causation have been admitted
- Harm, abuse or neglect claims
- Various claims against the police
How will it work?
The intermediate track is split into 4 complexity bands. These are important, because the complexity band to which the claim is assigned impacts how fixed recoverable costs are calculated.
The higher the complexity band, the higher the amount of recoverable costs.
- Complexity band 1 will apply to personal injury claims where only quantum is in dispute.
- Complexity band 2 will apply to personal injury claims where liability and quantum are in dispute.
- Complexity band 3 will apply to more complex claims where more than one issue is in dispute, noise-inducedhearing loss and employer’s liability disease claims.
- Complexity band 4 will apply to any claim which would normally be allocated to the intermediate track but is unsuitable for bands 1-3 due to its complexity. This includes any personal injury claim where there are serious issues of fact or law.
It is important to note that the level of FRCs in the intermediate track are not only determined by the complexity band the case falls in, but also the stage at which the claim settles.
What should practitioners bear in mind with the intermediate track?
Parties are encouraged to agree to the complexity band and set this out in the parties’ directions questionnaire. Should the parties disagree, they must explain their reasons in the directions questionnaire and provide relevant information in support of their decision. Overall discretion rests with the court to assign a different band, even if the band is agreed between the parties.
Once the court determines a complexity band, a Notice of Determination will be served at the same time as it serves Notice of Allocation to the track. Practitioners should also bear in mind that the complexity band can be changed if appropriate.
Finally, judges will have discretion to allow any disbursements which have been reasonably incurred in intermediate track cases. Comparatively, in fast track cases there will be rules on the recoverability of disbursements.
How we can help
At Temple, we are always happy to use our extensive experience to help our coverholders and partners with difficult costs queries, including those to do with FRCs.
Furthermore, we are hosting a webinar for our coverholders and partners to give a final run-through of the impending FRC regime changes. A video recording of it will be released publicly during October 2023.
Please contact Fraser Barnstaple via email at firstname.lastname@example.org with your observations onthis topic or to discuss your ATE insurance requirements.