Housing claims and the intermediate track

On 1 October 2023, a new track came into force which shook up the rules on allocation and fixed costs. There are some exceptions carved out in the rules for housing matters however, which has resulted in much confusion among solicitors, barristers and even judges about whether and how this new track applies in housing matters, even a year and a half since it came into force.

This article aims to clarify how the intermediate track operates in housing claims and the costs consequences of allocation to this track.

The Intermediate Track

CPR 26.7(1) provides that the court shall allocate the claim to a track and where applicable assign it to a complexity band.  

As always, when allocating the claim, the court will have regard to matters such as value, length of trial and the complexity and importance of the proceedings (CPR 26.12(1) and CPR 26.13(1)).

The intermediate track is the normal track for claims with a value of more than £25,000 and less than £100,000 (CPR 26.9(7)) and for cases where the trial will be no longer than three days (CPR 26.9(7)(c) and CPR 28.14(2)(b)).

Accordingly, the intermediate track will now be the appropriate track for many possession, disrepair and unlawful eviction claims, and such matters are now less likely to be on the multi-track.

Complexity bands

CPR 26.14(1) provides that when a claim is allocated to the fast track or intermediate track, the court must also assign the claim to a complexity band, unless it is a claim for noise induced hearing loss.

There are complexity bands 1 to 4, and the types of cases that fall within each band are helpfully set out in the rules: CPR 26.15 for the Fast Track and CPR 26.16 for the Intermediate Track. 

It is plain from the wording of the rule that all Fast Track possession and disrepair claims should be placed in complexity band 3 at the very least. The appropriate complexity band on the intermediate track depends primarily on the number of issues in dispute and the length of trial. 

What is the effect of the complexity band in housing claims?

CPR 26.14(3) provides that the complexity band to which the claim is assigned shall determine the costs that are to be allowed under Table 12 or Table 14 in CPR Practice Direction 45.

Table 12 covers fixed costs in the fast track and Table 14 covers fixed costs on the intermediate track.

These tables are applied under Section VI and VII of Part 45 respectively. These sections are expressly stated to not apply to claims or counterclaims which relate, in whole or in part, to residential property, including a claim or counterclaim for possession, disrepair or unlawful eviction: CPR 45.1(4). 

So, while CPR 26.14(3) states that the complexity bands determines the costs that will be allowed under those tables, those tables are expressly excluded in respect of claims for possession, disrepair and unlawful eviction.

CPR 28 covers the rules for the fast track and intermediate track. CPR 28.15 provides that, in respect of claims on the intermediate track, the court’s power to award costs is limited in accordance with Sections VII and IX of Part 45.  

As set out above, Sections VII expressly does not apply to claims for possession, disrepair or unlawful eviction: CPR 45.1(4). Section IX relates to disbursements but that section itself states that Section IX “sets out the disbursements which are to be allowed in any claim to which Section IV, VI, VII or VIII apply.” As discussed above, Section VI and Section VII do not apply to housing claims, meaning that Section IX also cannot apply. Section VIII covers claims for noise induced hearing loss and Section IV covers low value personal injury claims, such that they are irrelevant in respect of housing claims.

So what does this all mean in practice?

Pulling the strands together then, the position is that:

1. Possession claims can be allocated to the intermediate track;
2. When a claim is allocated to the intermediate track (and the fast track for that matter), the court must allocate it to a complexity band: this applies even to cases for possession, disrepair or unlawful eviction; and
3. Despite the wording within CPR 26 and 28 indicating otherwise, when one looks at CPR 45, it is clear that none of the rules relating to fixed costs apply. 

What this means in practice then, is that the court must allocate housing claims on the fast track and intermediate track to a complexity band, but it does not make any real difference to such claims as the only substantive effect of the complexity band is to prescribe costs consequences, which are expressly excluded for housing claims. 

Accordingly, the fixed costs regime does not currently apply to housing claims even though the intermediate track and its complexity bands do. The Rules were amended to delay implementation of fixed recoverable costs for housing cases to October 2025 following concerns by housing law groups such as HLPA that fixed recoverable costs would propose an existential threat to access to justice for tenants.  Only time will tell if the fixed costs regime will be extended to housing cases.