Guide To The Intermediate Track And Fixed Recoverable Costs

The legal landscape in the UK civil courts underwent a significant transformation on October 1, 2023, with the introduction of the Intermediate Track and the expanded Fixed Recoverable Costs (FRC) regime. This isn’t just a minor tweak; it’s a fundamental shift designed to bring greater certainty and proportionality to legal costs for claims valued between £25,000 and £100,000.

For legal practitioners and litigants alike, understanding this new framework is no longer optional – it’s essential. This guide will demystify the Intermediate Track, explore the intricacies of FRC, and equip you with the strategic insights needed to thrive in this evolving environment.

What is the Intermediate Track, and Where Does It Fit?

Think of the Intermediate Track as the new “middle ground” in civil litigation. It’s strategically positioned between the Fast Track (for claims up to £25,000) and the Multi-Track (for claims over £100,000). Its core purpose is to handle cases that are too complex for the Fast Track but don’t warrant the extensive costs budgeting and management of the Multi-Track.

For a claim to be allocated to this new track, it must meet specific criteria outlined in CPR 26.9(7) :  

• • Monetary Value: The claim must primarily be for monetary relief between £25,000 and £100,000.  
  • Trial Length: The court must believe the trial can be concluded within three days or less, assuming proportionate management.
  • Expert Evidence: Oral expert evidence at trial is generally limited to two experts per party, with a strong preference for just one unless a second is demonstrably and proportionately required.
  • Number of Parties: Typically, it involves a single claimant against one or two defendants, or two claimants against a single defendant, capping the total at three parties.
  • Suitability: The court must deem the claim suitable for management under the Intermediate Track’s procedural framework.  
  • No Other Factors: There should be no other reasons making the claim inappropriate for this track.

Crucially, claims seeking or including non-monetary relief won’t automatically land in the Intermediate Track. The court must explicitly decide it’s in the “interests of justice” to do so. This introduces a degree of judicial discretion, particularly relevant for cases like many housing claims that often involve non-monetary elements.

Automatic Multi-Track Allocation: Some claims, regardless of value, are automatically allocated to the Multi-Track due to their inherent complexity or sensitive nature. These include mesothelioma and asbestos lung disease claims, most clinical negligence claims (unless breach and causation are admitted), claims for harm to children or vulnerable adults, jury trials, and certain claims against the police.

The Heart of the Matter | Fixed Recoverable Costs (FRC)

At its core, the Intermediate Track is defined by Fixed Recoverable Costs. FRC are predetermined amounts of legal costs that the winning party can recover from the losing party. The aim? To provide certainty and proportionality in legal costs, empowering litigants to make more informed decisions throughout the process.

One of the most significant changes is the absence of costs budgeting and, consequently, no requirement for a Costs and Case Management Conference (CCMC) in the Intermediate Track. This streamlines the process, as costs are fixed rather than subject to detailed assessment. While a Case Management Conference (CMC) may still occur for directions, the focus shifts entirely to adhering to the fixed costs tables.

The specific FRC amounts are detailed in Table 14 of CPR Part 45, Practice Direction 45. These figures vary based on the claim’s complexity band and the stage it has reached in litigation.

The “Battle of the Bands”

Both the Fast Track and Intermediate Track employ a system of four complexity bands (Band 1 being least complex, Band 4 most complex). Each band dictates a different level of recoverable costs, making band allocation a critical strategic battleground.

Here’s a breakdown of the bands as per CPR 26.16 :

• • Band 1: Single issue in dispute, trial under one day. Examples: PI claims where either liability or quantum is disputed, non-PI road traffic claims, defended debt claims.
  • Band 2: Less complex, more than one issue in dispute. Example: PI accident claims where both liability and quantum are disputed.
  • Band 3: More complex, multiple issues, unsuitable for Band 2. Examples: Noise-induced hearing loss (NIHL) and other employer’s liability disease claims.
  • Band 4: Any Intermediate Track claim unsuitable for Bands 1-3. Typically, PI claims with serious issues of fact or law.

The definitions, particularly for Bands 2, 3, and 4, can be ambiguous, leading to a “battle of the bands” where parties strategically frame their pleadings and Directions Questionnaires (DQs) to argue for a higher or lower band. The court ultimately determines the band, considering factors like the nature of the remedy, complexity of facts/law, number of parties, and importance of the claim.

While reassignment is possible for “exceptional reasons” or a “change in circumstances,” the Ministry of Justice has provided no further detailed guidance, leaving interpretation to individual judges. This means the courts’ approach is still largely untested in reported decisions, creating a period of uncertainty for practitioners.  

Calculating Your Costs | Methodology and Adjustments

FRC in the Intermediate Track combine a fixed figure with a percentage of damages. This percentage applies to the sum recovered if the claimant wins, or to the value of the defeated claim if the defendant prevails.

Key adjustments to FRC include:

• • London Weighting: An additional 12.5% uplift on fixed costs applies if the receiving party lives, works, or conducts business in specified London areas and instructs a legal representative there.
  • Inflation Uprating: FRC figures, initially set in 2016, were increased by 3.2% in April 2024 to account for inflation. The MoJ plans to review the regime and costs tables in October 2026, with future adjustments tied to the Services Producer Price Index (SPPI). A crucial point: a claim remains subject to the FRC table in place on its issue date for its entire duration.
  • Additional Claimants: A 25% FRC uplift applies for each additional claimant in claims arising from the same set of facts, compensating for the extra work involved.

Your Strategic Playbook for Practitioners

The Intermediate Track demands a refined approach to litigation:

• • Expedited Procedure & Limitations: Expect standard directions and strict limits: Statements of Case (10 pages), witness statements (30 pages total per party), and expert reports (20 pages, excluding attachments).
  • Expert Evidence: The limitations on experts (generally one per party, two if proportionate) mean highly selective and focused engagement is crucial. This raises concerns about presenting a fully robust case in complex matters.  
  • Part 36 Offers: A Game Changer: The regime significantly enhances incentives for claimants. If a claimant makes a Part 36 offer that’s not accepted, and they equal or better it at trial, they’re entitled to their fixed recoverable costs plus a substantial 35% uplift. This replaces the old 10% uplift and indemnity costs. For defendants, a well-pitched early Part 36 offer can deter claimants from pursuing higher complexity bands, as a higher band means greater costs liability if they fail to beat the offer.
  • Unreasonable Behaviour: The court retains power to adjust FRC by 50% for unreasonable behaviour. If the paying party (e.g., defendant) is unreasonable, they pay an additional 50%; if the receiving party (e.g., claimant) is unreasonable, they recover only half their costs.
  • Vulnerable Parties: While the rules allow costs to exceed FRC for vulnerable parties if their vulnerability necessitated additional work, this “additional work” must be at least 20% greater than the fixed recoverable costs. This 20% threshold is a significant hurdle, creating financial risk for solicitors if the threshold isn’t met or vulnerability isn’t recognized by the court.
  • “Costs Budgeting Light” Pilot: Commencing April 2025, this pilot scheme introduces simplified costs estimates (Precedent Z and Zr) for Intermediate Track cases just outside the FRC regime, and claims between £100,000 and £1 million. It aims to reduce procedural burden and maintain proportionality for these mid-value claims.

Recent Amendments and Future Outlook

The FRC regime is a “living regime,” subject to ongoing refinement:

• • April 2024 Revisions: Fixed trial advocacy fees are now recoverable for cases settling late or vacated shortly before trial (100% if settled on day of trial/day before; 75% if settled/vacated up to five days before trial).
  • Fixed Costs Determination: A new procedure for resolving FRC disputes, with fixed costs, is expected in October 2024, alongside fixed costs for Part 8 (costs only) claims.
  • Housing Claims Delay: FRC implementation for housing claims has been postponed until October 2025 due to concerns about access to justice for tenants. While FRC doesn’t apply, housing claims can still be allocated to the Intermediate Track and assigned complexity bands.
  • October 2026 Review: The Ministry of Justice is committed to a comprehensive review of the extended FRC framework, including costs tables and the impact on vulnerable parties, by October 2026.

Challenges and Uncertainties

Despite its aims, the FRC regime presents challenges:

• • Quality of Representation: Capped costs raise concerns that solicitors may be less willing to invest extensive time in complex cases, potentially impacting service quality.
  • Access to Justice: While intended to improve access, capped costs might deter solicitors from taking on risky or resource-intensive cases, potentially leaving some claimants without representation.
  • Complexity Band Ambiguity: The lack of detailed official guidance and early judicial precedent means accurately classifying cases into complexity bands remains challenging, leading to disputes and uncertainty in cost predictions.  

Conclusion | Your Path Forward

The Intermediate Track and FRC regime are here to stay, fundamentally reshaping civil litigation for mid-value claims. Success in this new environment hinges on a proactive, strategic approach:

• • Early Case Assessment: Meticulously review claims to accurately determine track allocation and complexity band from the outset.
  • Strategic Pleading & DQ Preparation: Craft statements of case and Directions Questionnaires to strategically influence complexity band assignment.
  • Diligent Internal Cost Management: Recognise that recoverable costs are fixed; implement robust internal processes to ensure profitability within the FRC framework. 
  • Master Part 36 Offers: Understand and strategically deploy Part 36 offers, leveraging their enhanced financial incentives for claimants and their power in costs risk management for defendants.
  • Prudent Expert Engagement: Be highly selective with experts, adhering strictly to page and number limits, ensuring their input is proportionate and crucial.
  • Meticulous Documentation for Vulnerability: For vulnerable parties, maintain detailed records of all additional work to support potential claims for increased FRC.
  • Continuous Monitoring: Stay abreast of new CPR amendments, evolving judicial interpretations, and reported decisions as they emerge, adapting your strategies.
  • Clear Client Communication: Provide transparent, upfront guidance on FRC implications, managing expectations regarding costs certainty.

By embracing these strategies, legal practitioners can confidently navigate the new frontier of the Intermediate Track, ensuring efficient case management and optimal outcomes for their clients.