The Civil Procedure Rules (the Rules that govern Civil Court proceedings) are constantly changing but fundamental changes were introduced last year affecting how the court addresses disputes, personal injury and litigation cases.
When an application is made to the court for a civil claim, the case will be allocated to a ‘track’, (if the matter is defended), depending upon a variety of factors, including the monetary value of the claim, its complexity, the issues in dispute and the potential number of experts relied upon.
There used to be 3 tracks:
- Small Claims Track: This track dealt with most claims under £10,000 but excluded housing disrepair and personal injury cases.
- Fast Track: As above for claims between £10,000 to £25,000.
- The Multi Track: This was for all claims exceeding £25,000, though also for smaller financial claims where the case involved intricate evidence and/or complex points of law.
However, last year’s reforms to the Civil Procedure Rules sought to guarantee that any legal expenses incurred were better balanced by the complexity and value of the case itself. Consequently, in addition to changes to Fixed Recoverable Costs (FRCs), a 4th track; ‘the Intermediate track’, was introduced.
The Small Claims track is designated to deal with less complex claims with a value of less than £10,000. It is more informal than the other tracks and the parties will often deal with the claim themselves because the costs of instructing a legal representative, often exceed the amount claimed.
The Fast track is for cases with a value of between £10,000 and £25,000, where evidence is required from more than one expert and there are complex areas of law or multiple issues in dispute.
The new Intermediate track was introduced to simplify and expedite settlement in civil cases with a monetary value between £25,000 and £100,000, that are not complex enough to justify allocation to the multi-track, and to keep costs as low as possible for litigants.
Whilst judges will still have discretion to allocate more complex – yet lower value – cases to the multi-track, ensuring that complex cases will not be inappropriately or unfairly captured by the extended Fixed Recoverable Costs regulations, the Multi track has now been dedicated for especially complex cases concerned with claims over £100,000, and cases which do not fall into the Intermediate track.
Naturally, more complicated cases will incur higher costs due to their legal issues and complexities that necessitate expert reports and additional legal expertise that may be needed to support the case. Therefore, the type of ‘track’ that a case is allocated to, could be influential in the outcome of the case. For this reason, it is important that the initial information that you provide to your solicitor is accurate, so your case is allocated correctly. Whilst the court has ultimate discretion as to which track the claim should be allocated to, both parties can, upon agreement, decide to allocate the case to a lower track which may be beneficial to limit costs, particularly for individuals who are defending a court claim.
The fixed recoverable costs regime aims to give litigants more certainty in advance about the maximum amount that the losing party will be required to pay. Though recoverable fixed costs may ultimately be determined on a case-by-case basis, there is a process that determines a figure for these recoverable costs that is dependent upon the complexity of the case, and according to which stage of the legal process that the case has reached.
In effect the legal costs that are recoverable from the losing party will increase proportionally to the value of money claimed and the stage that the matter has reached if settled out of court. Advice on potential liability should be sought at the outset of your case
Whilst the 1st of October 2023 is the significant date for the implementation of the FRC rules, the application of the regime for housing claims will be delayed until October 2025.
The effect of this fixed fee regime on recoverable costs is likely to mean that those committed to Court proceedings may need to bear a higher level of their own costs than has previously been the case. We, here at Curwens, are ever mindful of this fact and endeavour to provide a service which is both accommodating to the client’s needs and proportionate to the costs’ risks going forward.
Against this, dispute resolution or litigation as it used to be called, remains a potentially expensive undertaking, not least in relation to the Court fees which must be paid and the potential losses from an unsuccessful case.
The Courts are now firmly encouraging both of the parties to engage in ‘alternative dispute resolution’ and many cases we see now go to mediation to achieve settlement. Bearing in mind the onerous costs risk of litigating matters through to trial this is quite often an attractive option especially as the Courts expect parties to engage in alternative dispute resolution first, and those who unreasonably fail or decline do so, can face the prospect of adverse costs consequences.
Spiralling litigation costs are a genuine concern for anyone considering any legal action. We will advise you of the cost of each stage of the legal process so that you remain fully aware of your potential expenditure every step of the way.
At Curwens our experienced team of Litigation experts understand the issues involved in disputed cases, including personal injury claims and the risks involved in litigation. We can help you resolve your dispute or claim as quickly as possible either by Mediation and/or Arbitration or through Litigation.
Justice should be available for all, and if you want some advice concerning your dispute or potential litigation or if you want to find out more about the services that our firm provides and how we can help you get justice, please get in touch with our Dispute Resolutions Team on 020 8363 4444.
by Alan Carter and Sara Alili.
Head of Litigation and Dispute Resolution Department, Curwens LLP
