Fast Track Claims

Published on 23^rd September 2022

Written by Zahida Shah, Trainee Solicitor at Silverback Law

Following our previous article on the Small Claims Track, this month we will be talking about matters that are allocated to the Fast Track, and what this means.

What is Fast Track?

When a claim is brought at court, and a Defence is received, the court will allocate it to one of three ‘tracks’ which will determine how that case will be handled:

• Small Claims Track
• Fast Track
• Multi Track

In most instances, matters are allocated to the Fast Track if they are straightforward and of a value between £10,000 – £25,000.

What is the Procedure?

Fast Track Claims can take around 12 months from issue to get to a trial at Court.

It is worth noting that a Claim could settle, or the action be discontinued before it ever gets to trial. As with all Defended Litigation, parties are encouraged to liaise with each other, with a view to settle the matters at any time during proceedings.

Proceedings would generally involve a series of steps (all of which would be led and managed by your appointed legal representative):

1. Pre-Action

1. The Claimant is obligated to follow any relevant Pre-Action Protocols before issuing a Claim. This is also a very useful opportunity to learn of the Opposition’s disputes and to narrow down the issues so that the Claimant can assess the strength of their own Claim, even at this early stage.

• Statement of Case

• Issue Claim – The Claimant will need to issue a concise statement of the nature of the claim and specify the remedies which it seeks. It is often useful to also provide separate, detailed Particulars of Claim.

• Response to Claim Received – If the Defendant is unable to file a Defence within 14 days after the service of the Claim, they will need to send an Acknowledgement of Service. They will then have a further 14 days to file their Defence.

• Notice of Defence Received – the Court will send the Claimant the Notice of Defence which also provides a deadline by which the Claimant should confirm if they wish to continue with proceedings. This is known as a Notice of Intention to Proceed (NIP). This is another opportunity to re-evaluate and consider the risks and costs implications of continuing to trial.

NOTE: If the Claimant does not provide a NIP, the Court would actually Stay the Claim (pause indefinitely). The Claimant would then need to make an Application to lift the Stay, incurring a Court Fee and the legal costs of preparing such an Application.

• Assess for Strike Out of Defence – If there is no evidence of reasonable grounds for a Defence, the matter may be suitable for Strike Out.

To avoid all parties incurring unnecessary costs, the Claimant should make such an Application as early as possible.

• Directions

• Complete Directions Questionnaire -The Court will ask for the return of a Directions Questionnaire to establish information such as:
  • whether you have requested a Stay to try and settle the matter
  • if you intend to instruct an expert
  • who your witnesses are
  • what are their dates of unavailability (as any witness providing a statement will most likely need to attend the trial in person)

This will help the Court determine whether the provisional allocation to the Fast Track is correct.

• Complete Draft Order for Directions – The Claimant will also be asked to complete a Draft Order to try and establish the following:
  • how long a trial should be listed for
    • how long you think you will need to prepare your case for trial including collating Witness Statements
    • if you will need expert evidence and the type of expert

The Court will ultimately issue directions/deadlines based on the needs of the case, and these must be adhered to.

NOTE: It is essential to complete the Directions Questionnaire, or you risk having the case struck out by the Court.

• Allocation

• Notice of Allocation to the Fast Track Received – The Court will usually provide further directions within the Notice of Allocation, setting down deadlines for disclosure of documents to the other party and exchange of Witness Statements.

• Payment of Trial Fee – The Court will also provide a deadline to pay the non-refundable Trial Fee, which is currently set at £545.00 for Fast Track trials.

• Disclosure

5.1 Disclosure of all documents that have a bearing on the case – You must actively search for, and disclose, all relevant documents that you now have, have had, or have access to if held by someone else.

This includes anything relevant, even if they are harmful to your own case as much as those that are helpful.

Documents can take many forms including images, emails and mobile phone texts.

• Exchange of Witness Statements

•  A Witness Statement is a formal document that contains a Witness’s account of the facts relating to a particular dispute.

The purpose of a Witness Statement is to provide written evidence to support a particular party’s case. Should the matter go to trial, a Witness Statement is the evidence in chief for that individual and you may be cross examined on the content of it. 

• Trial Preparation

• Prepare a Brief to Counsel – In addition to the witnesses, it is likely you will appoint Counsel to appear at trial on your behalf. They will serve a summary of the case which will also include all the documents and information required to put forward.

•  Prepare the Trial Bundle – You usually prepare one Trial Bundle which includes notices and orders the court has sent out, the parties’ statement of cases, witness statements and any other relevant correspondence and documents. Parties need to try and agree the content in advance.

•  Send a Costs Summary – Parties will need to prepare their own Costs Summary, so the Court has a clear breakdown of your costs in litigation, including any disbursements. This will be a considered document when awarding costs.

• The Trial

A Fast Track Trial is likely to last a day and is usually conducted in person.

Please refer to our previous article ‘The Small Claims Track’ which provides further information in respect of what to expect at trial.

You may be surprised to know that many Claims settle with trials looming round the corner and Settlement Orders being put before Judges at the trial hearing!

Should you consider a Settlement?

Unlike in the Small Claims Track, should a Claimant discontinue on a Fast Track case, they run the risk of the Defendant seeking the costs incurred defending the matter.

As such, the safest option is to agree with the Defendant to what is known as a Drop-Hands Settlement Offer. This is an offer whereby parties mutually agree to withdraw their claim with each party bearing its own costs. Such an Offer needs to be carefully drafted, particularly if it is being put forward by the Claimant.

Can you recover your Costs?

At trial, the general costs rule is that the winning party will usually be awarded its legal costs. However, in reality, recovery tends to be in the region of 60-70%.

As with any matter, the cost of bringing a Fast Track Claim all the way to trial could exceed the sums being sought for damages, negating your overall recovery. Your lawyer ought to provide the best information possible in respect of anticipated costs, how they will be calculated and your likelihood of being successful.

Costs of litigation can vary depending on many factors including how reasonable the opposition is and how many steps the parties go through before the matter is resolved. It is sensible to talk about a budget with your solicitor, who can then keep this under review at the various stages of the proceedings and warn you when costs are exceeding expectations.

Your lawyer should also be able to advise you as to potential next steps which will allow you to make a well-informed decision about what to do next.

Summary

It is often the case that the parties have exhausted all the Pre-Action Protocols and the only way forward is to issue proceedings and to go through litigation. However, all parties need to consider the overriding objectives and proportionality, as well as being commercially minded about bringing a claim.

Most Fast Track matters do not go all the way to trial because parties decide to settle, having taken into consideration the issues, risks and costs involved in continuing litigation.

An experienced and commercially minded lawyer can make all the difference in a Fast Track matter. There will always be litigation risk, but a good lawyer should advise you on the best strategy to mitigate such risk, whist being mindful of costs and the likely prospects of your claim, to help you achieve the best outcome.

For further advice on commercial litigation matters, please contact Vishal Mahay, Head of Commercial Litigation at Silverback Law on vishal.mahay@silverbacklaw.co.uk