The intermediate track has now been in force since October 2023, yet many practitioners are still navigating how the regime operates in practice, particularly when it comes to fixed recoverable costs and disbursements.
While the framework appears straightforward on paper, experience to date suggests that disputes have not disappeared – they have simply shifted.
Early experience of the regime suggests several areas where disputes are already beginning to emerge.
What falls within the Intermediate Track?
At its simplest, the intermediate track applies to claims valued between £25,001 and £100,000.
However, the rules contain a number of important exclusions, including:
- Personal injury claims where the injury occurred before October 2023
- Claims issued before October 2023
- Mesothelioma and other lung disease claims
- Claims concerning abuse of a child or vulnerable adult
- Certain claims against the police
Clinical negligence claims are only eligible where liability is admitted in full at the outset, which in practice means relatively few such cases will fall within the regime.
The housing claims anomaly
Housing claims occupy an unusual position within the rules.
High-value housing disrepair, possession or unlawful eviction claims can theoretically be allocated to the intermediate track.
However, even where they are allocated there, they do not fall within the fixed costs regime under CPR Part 45, unless the claim concerns a boundary dispute.
This produces a somewhat counterintuitive outcome: a claim may sit within the intermediate track procedurally, yet not attract intermediate track fixed costs.
The explanation lies in the drafting of the rules. Allocation is governed by CPR Part 26, while the exclusions from fixed costs sit separately in Part 45.
Where disputes are now arising
The fixed costs regime was intended to create certainty. In practice, the focus of disputes has simply shifted. One of the key battlegrounds is complexity banding.
Where a claim proceeds to allocation, the court assigns a complexity band. That band determines the level of recoverable costs.
However, difficulties arise where a case settles before allocation. In those circumstances, the parties may need the court to determine what band the case would likely have been assigned, in order to establish the correct level of recoverable profit costs.
Profit costs and Counsel’s fees
Practice Direction Table 14 sets out the fixed costs available at each stage of a claim, covering both solicitor profit costs and certain categories of Counsel’s fees.
Examples include:
- S2: Drafting Particulars of Claim
- S7: Advice in conference or in writing following the Defence
- S10: Brief fee
- S11: Refresher fees
- S14: Attendance at a Joint Settlement Meeting
Most other stages relate to solicitor work.
Importantly, only one of S1, S3, S4, S5, S6 or S8 applies, depending on how far the claim progresses. Additional fixed sums are then layered on for specific events such as trial attendance or reserved judgments.
The grey area: Counsel’s fees outside Table 14
CPR 45.60 permits recovery of disbursements reasonably incurred, provided they do not relate to work already captured by the fixed costs regime.
In theory, this means Counsel’s fees that fall outside the categories listed in Table 14 should remain recoverable.
In practice, however, paying parties frequently argue that such work is already covered by the regime – particularly under the broad wording of the advice stage, which can apply at any point following service of the Defence.
This is likely to become one of the key areas of friction under the new regime.
Disbursements: framing matters
The same caution applies to other disbursements.
Although CPR 45.60 allows recovery where costs are reasonably incurred, there is a real risk that items which resemble work typically carried out by solicitors will be treated as already included within fixed costs.
As a result, the characterisation of the cost may prove just as important as the cost itself.
The current position
The intermediate track was designed to simplify costs recovery.
In reality, the disputes have not disappeared – they have simply moved to different questions:
- Which complexity band applies
- Whether particular work is already included within the fixed regime
- Whether certain disbursements remain recoverable
Understanding these pressure points is key to navigating the regime effectively.
The Your Legal Costs team regularly assists firms with the preparation of Precedent U statements of fixed costs, both ahead of trial and for the purposes of CPR 45.64 assessment of fixed costs. Where disputes arise around banding or recoverability, our negotiators work with instructing solicitors to achieve the strongest possible recovery.
How Your Legal Costs can assist
The introduction of the intermediate track has brought greater structure to costs recovery, but it has also created new areas of uncertainty and dispute.
The Your Legal Costs team regularly supports instructing solicitors with:
- preparation of Precedent U statements of fixed costs
• advice on complexity banding and recoverability of disbursements
• negotiation and settlement of intermediate track costs
• advocacy at costs hearings and detailed assessments
If you are dealing with an intermediate track matter and would value support on maximising costs recovery or resolving disputes around fixed costs, our team would be happy to assist.
Please get in touch with the Your Legal Costs team to discuss your matter – via instructions@yourlegalcosts.co.uk or 0151 449 0005..