On 1^st October 2023 the Civil Procedure Rules (CPR) introduced a new intermediate track and fixed recoverable costs (FRCs) for certain claims valued at more than £25,000 and not more than £100,000.

The reforms apply to claims where proceedings were issued on or after 1^st October 2023, save for personal injury. The FRC regime applies to personal injury claims where the cause of action accrued on or after 1^st October 2023; and to disease claims where the letter of claim had not been sent to the defendant before 1^st October 2023.

Importantly for Expert Witnesses, CPR 28.14(3)(c) imposes a maximum size for Expert Witness Reports prepared for cases in the intermediate track, unless the court orders otherwise:

“any expert report shall not exceed 20 pages”

The rule makes clear that the 20-page limit includes the expert’s description of the issues on which they have been instructed to give an opinion, their conclusions and the reasons for those conclusions.

The expert’s CV, supporting material referred to in the reasoning, and necessary photographs, plans and academic articles attached to the report are excluded from the page limit.

This is an important practical restriction. The substance of the expert’s opinion – the issues addressed, conclusions reached and the reasoning supporting them – must ordinarily fit within the 20 pages. Experts instructed in an intermediate track case should therefore establish at an early stage whether their proposed evidence can realistically be dealt with within that constraint.

Which cases are allocated to the intermediate track?

The intermediate track sits between the fast track and the multi-track. Under CPR 26.9, it is normally appropriate where:

• the claim is suitable for neither the small claims track nor the fast track;
• the claim includes monetary relief of not more than £100,000;
• if the case is managed proportionately, the trial is expected to last no longer than three days;
• oral expert evidence at trial is likely to be limited to two experts per party;
• the claim can be justly and proportionately managed using the intermediate track procedure; and
• there are no additional factors which make the claim inappropriate for the intermediate track.

The normal intermediate track criteria also envisage a claim brought by one claimant against one or two defendants, or by two claimants against one defendant. However, the court has a wider discretion to allocate a claim to the intermediate track where it considers it in the interests of justice to do so.

A claim which includes non-monetary relief is not automatically excluded. It may be allocated to the intermediate track where the court considers that to be in the interests of justice.

Certain claims must normally be allocated to the multi-track. These include mesothelioma and asbestos lung disease claims; claims concerning harm, abuse or neglect of or by children or vulnerable adults; certain claims against the police and public authorities; and clinical negligence claims, subject to a limited exception where there has been a qualifying admission of liability. The full provisions are set out in CPR 26.9(10).

Expert evidence in the intermediate track

The fact that up to two experts per party may be contemplated when deciding whether a case is suitable for allocation to the intermediate track should not be confused with the rules governing oral evidence once the case is on that track.

CPR 28.14(2) provides that oral expert evidence is normally limited to one expert per party. The oral evidence of a second expert may be permitted where it is reasonably required and proportionate.

The trial time estimate must not exceed three days.

The court will give directions for management of the case, including directions dealing with expert evidence. It may give directions when allocating the claim or hold a case management conference. The parties are required to try to agree appropriate directions in advance of any case management conference.

Experts must therefore pay particular attention to the directions made in the individual case, including deadlines for reports, questions to experts, discussions between experts, joint statements and attendance at trial.

The usual requirements of CPR Part 35 and Practice Direction 35 continue to apply. In particular, an expert’s overriding duty remains to help the court on matters within their expertise, and that duty overrides any obligation to the person instructing or paying them.

Fixed recoverable costs and Expert Witness fees

Cases on the intermediate track are assigned to one of four complexity bands. Those bands determine the level of fixed legal costs recoverable under CPR Part 45.

It is important, however, to distinguish fixed legal costs from disbursements such as Expert Witness fees.

Expert fees are not generally included within the fixed legal costs in Table 14. CPR 45.50 provides separately for the fixed costs in Table 14 and for allowable disbursements. Under CPR 45.60, the court may allow a disbursement which has been reasonably incurred, provided it is not payment for work already covered by the fixed costs regime.

The general intermediate track FRC regime therefore does not impose a standard fixed fee which an Expert Witness must charge for preparing a report. There are separate rules fixing particular expert or medical reporting costs in some categories of claim, but these should not be confused with the general intermediate track regime.

Recoverability will nevertheless be important to those instructing an expert. Experts should agree their fees and scope of work clearly in advance, and should expect instructing parties to pay particular attention to whether the proposed expert evidence and its cost are reasonable and proportionate to the issues and value of the case.

What does this mean in practice for Expert Witnesses?

• Check the track at the outset. An expert should know whether the case has been, or is expected to be, allocated to the intermediate track.
• Plan for the 20-page report limit. The expert’s substantive opinion, conclusions and reasoning will ordinarily have to fit within it.
• Check the court order. The 20-page limit applies unless the court orders otherwise, and the individual directions will govern the timetable and permitted expert evidence.
• Keep the evidence focused. Intermediate track procedure is intended to allow claims to be managed justly and proportionately within a trial of no more than three days.
• Agree fees and scope clearly. Expert fees are not generally fixed by the Table 14 FRC figures, but their recoverability will remain subject to the applicable costs rules and considerations of reasonableness and proportionality.
• Allow time for expert discussions. Where ordered, experts must cooperate in identifying and narrowing the issues on which they agree and disagree and in preparing any joint statement.

Reallocation

The court retains power to reallocate a claim where appropriate. However, once a claim has been allocated to the intermediate track and directions have been given, CPR 26.18 provides that it may only be reallocated where there are exceptional reasons justifying that course.

For the current rules, see CPR Part 26 – Case Management: Preliminary Stage, CPR Part 28 – The Fast Track and the Intermediate Track, CPR Part 35 – Experts and Assessors and CPR Part 45 – Fixed Costs.