“Why did you have to go and make things so complicated? ¹;- New Complexity bands on the Fast and Intermediate Tracks

County Court Judges are starting to see Intermediate Track Allocation Hearings in personal injury cases i.e. claims arising from accidents that occurred after 1^st October 2023. Whilst personal injury lawyers are very familiar with track allocation, they are about to take another leap into the unknown with the introduction of complexity bands in fast track and intermediate track cases.

Let’s take a look at the brand new Intermediate Track with a view to understanding the key terminology and how it might be interpreted. This is the normal track where, in summary, the claim value is between £25,000 to £100,000 and the trial can be concluded in three days ².

Assignment within the fast track and the intermediate track

26.14.— (1) When a claim is allocated to the fast track or the intermediate track, the court must also assign the claim to a complexity band, unless it is one to which Section VIII of Part 45 applies.

(2) In both Table 1 and Table 2, below, the complexity bands numbered 1 to 4 provide an ascending scale of allowable costs commensurate with the complexity of the claim.

(3) The complexity band to which a claim is assigned shall determine the costs that are to be allowed under Table 12 or Table 14 in Practice Direction 45.

(4) Subject to paragraph (5), the parties may agree the complexity band to which a claim is assigned.

(5) The court may direct that a claim be assigned to a different complexity band than that agreed by the parties, but shall have regard to the factors set out in rule 26.13(1).

(6) A party must state on their directions questionnaire—

(a) the agreed complexity band; or

(b) where the parties disagree, the complexity band considered appropriate by that party,

together with any relevant information in support.

Bands on the Run

There are of course four bands (see below).

Band 1 looks to be straightforward as it applies to one issue/one day personal injury claims. However, there is no definition of the word “issue”. What constitutes a one issue claim? We can see, taking a sneak peek ahead, that Band 2 refers to “claims where liability and quantum” are in dispute. Is an “issue” in this context simply a reference to the two classic overarching issues in personal injury claims, namely liability and quantum? On that basis, are we to assume that causation disputes are subsumed under the heading ‘liability dispute’? Taking the example of a standard highway tripping claim with a value in excess of £25,000, the Court might expect to see an admission of breach of duty with causation and quantum in dispute. Since there are two issues in dispute, this claim would, on one view, fall outside Band 1. If the Court were to take the view that medical causation fell under the umbrella of ‘a quantum dispute’ however, the claim would remain a one issue case. It is commonplace to see a statement of case relying on a defence of contributory negligence in personal injury claims; again, this would arguably amount to a separate issue in this context, although it technically falls under the heading of quantum.

As we turn to Band 2, we are introduced to “complexity” for the first time. A claim falls into Band 2 if it is a “less complex claim where more than one issue is in dispute”. It includes (as discussed above) personal injury accident claims where liability and quantum are in dispute. There is no definition of what constitutes a “less complex claim”. No examples are provided of the type of claim which would be defined as “less complex” which is perhaps unsurprising. One might imagine that a standard road-traffic type claim or supermarket slipping case with say a classic combination of orthopaedic and/or psychological medico-legal evidence might constitute a less complex claim. It would suit Claimants if the Courts began to interpret the meaning of a “less complex claim” as, in effect, the most straightforward claims of an intermediate track value. Defendant lawyers, on the other hand, will contend this definition casts a much wider net and effectively encompasses the majority of personal claims in this track.

In order to make the quantum leap to Band 3, the claim has to be “more complex”. Again, there is no guidance as to what this means. What is clear is that the criterion does not specify that the claim has to be complex per se; just “more complex than a less complex claim” (if you’ll forgive the tautology). Ambiguity and uncertainty are lawyers’ raison d’être. Legal prognosticators (i.e. me) expect this is to be a major bone of contention at allocation hearings. There are innumerable issues that arise in the context of a personal injury claim which complicate the resolution of the claim. Take for instance (1) an employers’ liability claim arising out of an accident on a construction site where there are two Defendants, each seeking an indemnity against the other, (2) a tripping claim against a local authority where there is a dispute about whether the pothole that caused the accident was on a ‘highway’ or (3) finally, a road traffic accident claim where a Defendant relies upon a defence of illegality or ex turpi causa in respect of credit hire charges. Those cases are more complex than so-called straightforward cases. It should be remembered those examples frequently arise in Fast Track claims; however, complexity does not exist on some kind of linear graph where there is a commensurate rise in complexity with increasing claim value. Some Fast Track cases are more complex than some Multi-Track cases (and vice versa).

There is an obvious caveat to this: personal injury claims that exist above the Fast Track invariably involve a dispute of expert medico-legal opinion. Lawyers (though we masquerade as pseudo-experts from time-to-time) are not medics. Medicine can be complex. The medical evidence in a Multi-Track claim is very often more complicated than that in a Fast Track claim; for example, chronic pain cases or where there are neurological injuries. At a Costs and Case Management Conference on the Multi-Track, the Judge will be presented with Claimant medico-legal evidence. It is no part of the function of the Judge at this interlocutory junction to consider the complexity of the issues in the case beyond providing appropriate management direction. The problem for Judges (and the Claimant’s legal representatives) at an Allocation Hearing on the Intermediate Track, assessing the complexity of the claim, is that they only have (pardon the vernacular) half the story. The true extent of the complexity of the claim may not yet have revealed itself.

Snakes and Ladders

CPR r.26.18(1) anticipates this problem and provides that the Court may on application, or on its own initiative, subsequently reassign the claim to a different complexity band. This is a proverbial ‘snakes and ladders’ provision. Reassignment can only take place where there has been a “change in circumstances” and the Court decides that change in circumstances justifies reassignment. The phrase “change in circumstances” is sufficiently wide to cover any number of developments although it is unclear how demanding the Court will be in terms of the justification aspect of the test. One can readily envisage a situation where a Claimant applies for reassignment as there is a significant dispute between experts on a technical issue whereas a Defendant might seek assignment relegation following an admission or having elected not to challenge some part of the Claimant’s expert evidence, perhaps having received advantageous replies to Part 35 questions. The applicant would bear the burden in the usual way of persuading the Court that the threshold is met and the costs of such an application would be subsumed under the fixed costs for the claim as a whole.

Reallocation and reassignment

 26.18.—(1) Subject to paragraphs (2) and (3), the court may on application or on its own initiative subsequently—

(a) reallocate a claim to a different track; or

(b) reassign a claim to a different complexity band.

(2) Where—

(a) a claim is allocated to the intermediate track; and

(b) directions in respect of that claim have been given,

the court may only reallocate the claim where it decides that there are exceptional reasons to justify doing so.

(3) The court may only reassign a claim to a different complexity band, where—

(a) there has been a change in circumstances since a direction was made assigning the claim to a particular complexity band; and

(b) the court decides the change in circumstances justifies reassignment.

Even if the claim is “more complex” (as opposed to “less complex”), if it remains a single “issue” case, it is left languishing (I strayed into hyperbole there admittedly) in Band 2.

Before we rebound away from Band 3, a postscript: even if the claim is “more complex” and “there is more than one issue in dispute”, is there still room for one final debate about suitability? The criterion in Band 3 reads as follows, “Any more complex claim where more than one issue is in dispute, but which is unsuitable for assignment to complexity band 2” which may suggest, on one reading, that a Court could still refuse to assign a claim to Band 3 if it considered that it has still not been shown that it was unsuitable for Band 2. The word ‘but’ not ‘and’ is used admittedly.

“You cannot be ‘serious’?” ³

A claim which is unsuitable for bands 1 to 3 falls within band 4. Again, there is no guidance as to factors that might render a claim “unsuitable” for those bands (subject to one exception). Parties can, of course, agree the appropriate band albeit the Court may override this and assign to a different band, taking into account the factors relevant to allocation set out in CPR r.26.13. This provision strongly indicates that the Court will rely upon those factors when assigning to a band where there is a dispute between the parties. The commentary in the band does refer to a personal injury claim where there are “serious issues of fact or law” as an example of a claim which would be unsuitable for assignment to bands 1 to 3. There is no (I must sound like a broken record…) no guidance as to the meaning of a “serious issue of fact or law”. ‘Serious’ is defined ⁴ as ‘requiring earnest thought’ or ‘demanding careful consideration’ which fits in with the question of “complexity” raised in bands 2 and 3. These are all complexity bands after all. It is unclear if the word will be given a broader meaning in the context of a personal injury claim. ‘Serious’ also refers to matters of importance and also very bad situations⁵. As to the latter, this parlance is used in the Judicial College Guidelines apropos of ‘serious’ injuries. Further afield, the phrase a ‘serious issue to be tried’ arises as a jurisdictional threshold for an interim injunctive relief, as per American Cyanamid. However, that is a very low bar in that context, designed to filter vexatious claims.

The obvious example that leaps to mind to a personal injury practitioner is a claim involving allegations of fundamental dishonesty. This issue covers the fuller definition of “serious”. Save in the clearest case, it is always challenging for a tribunal of fact to determine whether a Claimant has lied or dishonestly exaggerated an aspect of their claim. The judgment of Mr Justice Cotter in Muyepa v Ministry of Defence [2022] EWHC 2648 illustrates this: the assessment of a Claimant in an allegedly fundamentally dishonest case is a complex and multifaceted task. Of course, Judges are very well accustomed to dealing with such allegations in a one day Fast Track claim, often giving ex tempore judgments. I have already addressed the myth (if there is one?!) that Fast Track claims are always less complex than Multi-Track claims. There is, of course, more at stake in a higher value claim in terms of damages and costs and accordingly hearing time.

Despite the number of hotly-contested issues likely to rear their head at these new Allocation Hearings, there is no provision within the Civil Procedure Rules for a disbursement to cover the attendance of counsel. Nonetheless, it would be a true economy for parties to utilise the expertise of counsel given the costs at stake since a claim assigned to Band 4 is, of course, likely to attract a significantly greater sum of fixed costs than one assigned to Band 2⁶.

It is hoped that the Courts will assign cases to appropriate complexity bands based upon their individual idiosyncrasies rather than rebuttable assignment presumptions. This would be in-keeping with the fairly non-prescriptive criterion in the bands. As the common law inevitably develops in this area, the concern for Claimants is that Band 2 becomes the default. On the hand, Defendants will be keen to quash the notion that any claim said to be fundamentally dishonest or exaggerated should automatically bypass Bands 1 to 3.

James Cullen

July 2024

¹ Avril Lavigne (2002)
² See CPR r.26.9(7)
³ John McEnroe
⁴ See the Oxford Dictionary
⁵ It is used in the context of applications for relief from sanctions in CPR r.3.9 where there is a ‘serious or significant breach’.
⁶ See PD 45 ‘Tables of Fixed Costs’ Table 45.50 ‘amount of fixed costs in the Intermediate Track’.