A Look At Track Allocation And The Effects Of Jackson’s Fixed Cost Reforms

Civil claims fall into three categories, or “tracks”:

• The small claims track
• The fast track
• The multi-track

How are cases allocated?

Cases are assigned to a track by the courts based on the information contained in a allocation questionnaire submitted by the parties. The courts then decide which track is most appropriate based on several factors, including the financial value and complexity of the claim (amongst other things).

The Small Claims Track

The small claims track is intended for straightforward, low value claims, not exceeding £10,000.

However, there are two exceptions to this rule:

1. When it comes to personal injury claims, the small claims track is only applicable if the claim has a value lower than £1,000.
2. Housing cases of certain types cannot be considered for the small claims track, including disrepair claims where the cost of the work or value of any damages are over £1,000.

The Fast Track

Generally, a claim will fall into the fast track if it exceeds the small claims threshold and is valued between £10,000 and £25,000.

The fast track is appropriate for claims in which the trial will take no longer than one day. Expert evidence is limited to two fields of expertise, and for each field, one expert per party.

The court will issue instructions once the case has been allocated to the fast track, including provisions for the disclosure of documents, the service of witness statements, and the scheduling of a final hearing date.

The Multi-Track

The multi-track is for highly complex cases exceeding £25,000 and where the trial is estimated to last longer than one day. The parties will need to adduce oral expert evidence from more than two fields, or a single field expert.

In most multi-track cases, the court will usually set a date for a case management conference (CMC) and may also set a date for a pre-trial review (PTR). A CMC serves to inform the judge of the issues that are in dispute between the parties, which will help the judge decide how the trial will proceed. Meanwhile, a PTR is intended to ensure that the parties have followed all previous directions in preparation for trial and allows for any further directions to be issued leading up to it.

Cost implications

In the small claims track, a successful party can only recover a fixed amount of costs such as court fees, witness expenses, and expert fees. As a result, the court has limited ability to award costs, in comparison to how much can be recovered in the other tracks.

In the fast track, a party can recover costs from the other side, such as an advocate preparing and appearing at trial, but this does not include disbursements or VAT. These costs are fixed and depend on several factors, including the value of the claim, whether it is a monetary claim, non-monetary claim, or counterclaim. Again, the court has limited authority to award more or less than these fixed amounts.

In the multi-track, the losing party must pay reasonable and proportionate costs and therefore costs budgeting is required. A cost budget (often referred to as precedent H) is a document prepared for court that outlines the amount the receiving party expects to recover upon the conclusion of the case, and also details where time and efforts should be spent during the litigation process.

In fast track and multi-track cases, the court will make a summary assessment of costs unless there is good reason not to. The parties are required to assist the court in this process by preparing, serving, and filing a written statement detailing the costs to be claimed (a statement of costs, or N260) at least 24 hours before the hearing. A court may order a detailed assessment if the parties cannot agree on costs or if a summary assessment is deemed inappropriate. In this case, the court will determine how much one party will have to pay for the other’s costs.

Fixed Cost Reforms

Extending Fixed Recoverable Costs? Expanding the Fast Track?
Last month, the government published its response to Lord Justice Jackson’s (Jackson LJ) review on Civil Litigation Costs. In 2016, Jackson LJ was appointed by the Lord Chief Justice and Master of the Rolls to develop proposals to extend fixed recoverable costs (FRC). A FRC regime sets the amount a successful party can recover in legal costs at different stages of the litigation process. Jackson LJ’s 2017 report argued that if legal costs remained certain and proportionate, access to justice would improve. A consultation paper was later released by Jackson LJ in 2019 that focused on the implementation of these proposals.

Highlights of the government’s response include:

• Calling for FRC to extend to most civil cases worth up to £25,000 in the fast track; and
• Expanding the fast track to include ‘intermediate’ cases valued between £25,000 and £100,000 in damages (with the exception of cases involving mesothelioma/asbestos, complex PI, actions against the police, child sexual abuse, clinical negligence and intellectual property).

In the government’s report, Hodge Jones & Allen is listed as one of 68 firms that responded to the consultation. The responses illustrate a difference in opinion between Claimant representatives and Defendant representatives, with the former viewing the extension of fixed costs in a less favorable light. A reason for this may be that extending fixed recoverable costs could actually hinder access to justice in complex cases of low value. After all, the rationale behind the FRC regime is that high litigation costs prevent access to justice. However, if costs are fixed at a level that is too low then this would have the opposite effect as lawyers will find it hard to undertake work where remuneration is low.

The government now plans to submit draft rules for consideration by the Civil Procedure Rules Committee and has stated that more thought will be given before any details can be finalised. It is clear that a balance must be struck to protect Claimants against incurring unnecessary costs and recovering minimal costs.

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