Exploring the Intermediate Track: A Path to Efficient Case Handling

In the ever-evolving landscape of legal proceedings, a new “intermediate track” has emerged as a valuable framework for case management within the court system. This track offers a balanced approach, ensuring cases are handled effectively while not overburdening the legal system and allows for greater predictability regarding the costs of litigation.  In this article, we’ll delve into what the intermediate track encompasses, the criteria for cases to be eligible, what it excludes, and the advantages of using this track.

Understanding the Intermediate Track

When a claim is issued, the judge will allocate the claim to a specific ‘track’. In allocating the case to a track, the court will have regard to the value and complexity of the claim.

On 1 October 2023, the new intermediate track was introduced to the system, designed to create a more efficient and responsive mechanism for handling cases. The intermediate track occupies a middle ground between the small claims track and the fast track and the multi-track.

Importantly, the fixed recoverable costs regime applies to the intermediate track meaning, the costs you can recover will be fixed. Recoverable costs will be dependent on which band of complexity the claim has been assigned to and the stage of litigation achieved. Generally, the higher the complexity band and the closer towards trial, the greater the cost recovery will be. To find out the amount of fixed costs that you will be able to recover, click here and look at Table 14, on pages 13-19.

Criteria for Intermediate Track

Cases eligible for the intermediate track must meet certain criteria:

  1. The claim includes a claim for monetary relief, the of value of which is at least £25,000 but, no more than £100,000.
  2. The trial will not last more than 3 days.
  3. Oral expert evidence at trial is likely to be limited to two experts per party.
  4. There are no more than 3 parties to the proceedings.

The cases that may be typically appropriate for the intermediate track include cases where liability is relatively straightforward, for example personal injury claims with clear evidence of fault, cases of moderate complexity not requiring extensive and time-consuming discovery proceedings and those where both parties are willing to engage in alternative dispute resolution.

Even where a case does not meet the outlined criteria, the court may allocate a claim to the intermediate track where it considers that it would be in the interest of justice to do so.

Exclusions from Intermediate Track

Not all cases are suited for the intermediate track. Cases which will be typically excluded from this track will include those involving great complexity, extensive discovery, or those with a history of contentious litigation. Cases in which the relief sought includes non-monetary relief, will not normally be allocated to the intermediate track unless the court considers it in the interest of justice to do so.

There are some specific exclusions for when a claim should not be allocated to the intermediate track including criminal offences such as felonies or a claim for damages in relation to harm, abuse or neglect of children or vulnerable adults. Similarly, a claim for clinical negligence would normally not be suitable for the intermediate track unless the claim is one which would normally be allocated to the intermediate track and both breach of duty and causation have been admitted.

Advantages of Using the Intermediate Track

The intermediate track offers several advantages, making it an attractive option for many claimants and legal professionals:

  1. Resolution Focus: One of the most significant benefits is that this track encourages parties to focus on resolution rather than adversarial litigation, which can be beneficial in maintaining relationships and reducing legal expenses incurred.
  2. Cost Savings: Since the fixed recoverable costs regime applies to the intermediate track, there is greater predictability regarding the amounts winning parties can recover.
  3. Efficiency: Another significant benefit is the time saved. By avoiding lengthy trials, cases can be resolved more swiftly, reducing the burden on the court system.

In conclusion, the intermediate track has emerged as a valuable framework in the landscape of legal proceedings. It balances the need for efficient case resolution with the demand for thorough examination and encourages early settlement reducing legal expenses. Parties must strategically consider when to choose the intermediate track, as it can save time, money, and court resources.

This article has been fact-checked and authorised by the Head of the Real Estate Litigation team, and Training Partner Michael Lewis. If you have any questions or thoughts, please reach out to him by clicking here.

Real Estate Litigation team and Counsel lead City Surveyors to victory in two day trial

Another successful result for Real Estate Litigation, Mike Lewis had victory in a two-day trial for a leading firm of City Surveyors against Spink (the international auction house) at Central London County Court. It was a most interesting case as to when an agent was the “effective cause” of a negotiated rent for a lease renewal. 

Full copy of Judgment delivered can be viewed here.

Counsel on the case George Woodhead, Selborne Chambers stated:

“Mike and George managed the case superbly from pre-action letters to trial.  They looked after our client’s interests throughout by giving astute advice and ultimately, ensuring that the necessary evidence was available and effectively presented at trial.  A deserved result reflecting both our client’s hard work and Sherrards’ well-known litigation prowess.”

Mathew Bailey, Partner at Angerman Goddard Lloyd Surveyors:

 “This was a fantastic result exceeding our expectations and fully justifying our decision to pursue the claim. Mike and his team provided expert advice throughout the process and George, our barrister, argued our case with the upmost skill. A great team and a great victory”

Mike Lewis, Partner:

“It was great to work with our long-standing client surveyors AGL and achieve such a fantastic result for them. The Judge accepted the significant levels of work that they had undertaken in assisting with lease negotiations and awarded the maximum remuneration. Working with Mathew Bailey at AGL was a pleasure. I have worked with Counsel George Woodhead on numerous cases and once again his support and input throughout the case was excellent and his performance at trial was outstanding.”


Achieving vacant possession for our client.

Sherrards’ Real Estate Litigation and Residential teams worked together to help our client to get vacant possession.

Vacant possession means the property must be empty on the day you complete your purchase or sale of it. 

The £5million property in Kensington had been sold subject to contract, however, there was a tenant in the property who was refusing to leave which was jeopardising the sale.

Proceedings were issued in the High Court.

Michael Lewis and his team worked hand in hand with our Residential Real Estate department in order to provide vacant possession and a successful outcome for our client and the sale of their property.

Sherrards help client Global Infusion Limited with dilapidations claim

At the end of the Lease the Landlord served a substantial dilapidations claim. Mike and the team used arguments involving a section 18 valuation to significantly reduce the Tenant’s liability. 

The team worked closely with Brasier Freeth one of the leading surveyors in Hertfordshire to help resolve this matter for our client.

Sherrards’ Real Estate Litigation team advise property client obtain vacant possession from Rent Act Tenant

One property in the portfolio had a Rent Act tenant, but it was suspected that the Rent Act tenant no longer resided at the property.  A claim was issued on the basis of abandonment.  However, papers were served suggesting the tenant was returning from working abroad

Michael Lewis and the team issued proceedings and the matter went to the High Court. In the days before trial the team managed to agree a successful settlement for our client.


Landlords or Retailers? Nobody’s a winner. Mike Lewis in ‘The Retailer’.

It’s no surprise the COVID-19 pandemic has had a significant impact on retailers and the sector as a whole. As many retailers were forced to close during both lockdowns, they have been unable to keep up with their rental payments, and as customers continue to self-isolate and stay at home footfall has been significantly lower.

On the flip side, landlords have struggled too with some not receiving payments from tenants, and the loss of protection following the implementation of the Coronavirus Act 2020 (the CA 2020) means they are unable to rely on contractual rights to forfeit commercial leases by peaceable entry, or by issuing court proceedings.

Click here for the full article in The Retailer (page 42) for an overview of the changes applied to the law due to Covid-19.

To find out more, please speak to Mike Lewis

The Coronavirus Act 2020- The Cat and mouse for Retailers and Rent Payments

The Coronavirus Act 2020 came into force on 26 March 2020 to provide protection to many aspects of society. One such group are retail tenants on the High Street . One of the key features of the Coronavirus Act 2020 (“the Act”) legislation, in relation to landlords and tenants are a moratorium on wind ups, bailiffs and forfeiture. As a recap, forfeiture is when a landlord takes back possession of the premises. Provided there is a forfeiture provision in the lease, a landlord does not need a court order and can simply change the locks.

The Coronavirus Act 2020 provides a moratorium on forfeiture of commercial leases for non-payment of rent. Rent is defined to include any amount payable under the lease. Thus, this applies to all payments required to be made by a tenant including service charge, insurance payments, utilities etc.

The forfeiture moratorium applies as from 26 March 2020 and, after a series of extensions, has now been extended until 25 March 2022, or such later date as may be specified. This means that, whilst the moratorium is in place, a landlord will not be able to evict a tenant for non-payment of rent. Many commentators have shown surprise at the length of this extension and no doubt landlords are dismayed.

A landlord also has lost other recovery methods such as sending in the bailiffs to seize goods to the value of the debt. The Commercial Rent Arrears Recovery (CRAR) can only be used where tenants owe at least 544 days’ principal rent.

A landlord continues to not have the option of threatening Insolvency. There will be an additional three month extension (from 30 June 2021 until 30 September 2021) on the blanket prohibition on statutory demands and the restriction on winding up petitions based on a company’s inability to pay its debts (unless the creditor has reasonable grounds for believing that either COVID-19 has not had a financial effect on the company or that the circumstances forming the basis of the winding up petition would have occurred even if COVID-19 had not had a financial effect on the company).  Arguing that COVID-19 has not had a financial impact on your tenants finances is not an attractive or straightforward argument for landlords.

The inability to forfeit, send bailiffs in, or commence the insolvency process portrays a picture of tenants being in the driving seat and landlords being in an extremely weak and vulnerable position. However, landlords do have one weapon in their armoury.

A less known fact is that there is not protecton in place from stopping a landlord simply suing the tenant for rental arrears.

Recent Westfield Case

The courts have been prepared to follow this principle as reinforced by a case brought by Westfield against a tenant earlier in the year.

Many Retailers will be concerned after the High Court ordered a tenant to pay Westfield £160,000 in unpaid rent and service charges that accrued during the pandemic. The retailer had not paid any rent since April 2020.  Westfield sought payment for rent amounting to £166,884 and interest at the contractual rate.

The High Court granted Summary Judgment in its claim against the retail tenant without the need for a full trial; signalling in no uncertain terms the Court’s approach and that it is prepared to enforce the terms of leases. The Code of Practice in place for landlords and tenants to settle the position regarding rental payments was deemed to be merely guidance.

Helen Dickinson, CEO at the BRC, said: “This case highlights the weakness of the Code of Practice in that it doesn’t change the legal liabilities of the tenant with regards to rent. Thousands of retailers were legally forced to close by Government restrictions during the pandemic, and thus had little or no income with which to pay rents.  While the rent enforcement moratorium has been welcome, it has left the County Court Judgment loophole open that landlords can exploit. The Government must tackle the issue of rent arrears in a way that is equitable to all parties, and doesn’t ignore the loss of trade to shops who have been closed for most of the last 12 months. Unless a more imaginative approach is found, many otherwise viable businesses will be forced into administration, closing shops, costing jobs, and jeopardising future tax revenue for the Chancellor.”

What next after the Moratorium?

The government has made clear, and indeed the recent case referred to above that, tenants cannot view this “break” as an indefinite silver bullet.

The extension to the moratorium on commercial evictions is to allow time for negotiations to take place but the government has also confirmed that where parties cannot agree a mutually beneficial outcome in respect of COVID-19 arrears, new legislation will step in and compel the parties to a binding arbitration process. There is little further information about this and whether arbitrators can provide for payment plans/variations to leases.

Landlords and tenants will be watching carefully what proposals are set out, in the meantime, there will inevitably be further cases where landlords issue court proceedings for rental arrears.

This article has also been published in the British Retail Consortium’s Magazine. The Retailer, on pages 28-29. Click here for the full copy of the Summer 2021 edition.

If you would like to find out more, please contact Mike Lewis. 

Pre-pack administration for the retail sector

With the recent collapse of a few retailers, including House of Fraser, and retail parks and shopping centres changing their business structure and appearance with the rise of online shopping, it is time to remind ourselves of what a ‘pre-pack’ can offer to retailers when things go wrong.

What is a pre-pack?

The term “pre-pack” refers to an agreement to sell all or part of an insolvent company’s business and/or assets to a buyer (usually a new company) negotiated before an administration commences, with the administrators then effecting the sale to the buyer immediately after their appointment.

Pre-packs have received a mixed review from the media over the years but have nonetheless been used with success particularly in the retail sector.

Why are pre-packs so criticised?

Historically, the bad press surrounding pre-pack administrations arose from the suspicions of unsecured creditors who saw the management team stripping away valuable assets from a company, carrying on the same business in another company, but freed from their debts, whilst leaving onerous liabilities and debts behind in the old structure.

However, directors of an insolvent business cannot arrange a pre-pack without careful consideration of certain legal issues such as:

  • their duties to provide the administrator with detailed information about the business, specifically to enable the administrator to make a proper assessment of its value (and so sale price);
  • their risk of incurring personal liability for “wrongful trading”, where they cause a company to trade beyond the point at which there is no reasonable prospect of avoiding an insolvent liquidation. This potential liability cannot be extinguished by a pre-pack and therefore this risk must be carefully assessed and timed;
  • their other obligations as directors of a company under the Companies Act 2006 (including non-profiting, care of creditors and other stakeholders of the business).

Transparency guidelines

Since 2009, insolvency practitioners are also required to comply with transparency guidelines applicable to pre-pack administrations.  These are called “Statement of Insolvency Practice 16” or SIP 16.

Under those guidelines, insolvency practitioners should disclose to creditors certain details of the deal, such as the name of the purchaser, the price paid and any connection the purchaser had with the former directors and shareholders, any valuations of the business or assets being transferred, the consideration for the sale and the terms of payment.

Administrators may face regulatory or disciplinary actions if they have failed to comply with SIP 16.

Right to challenge a pre-pack deal

Where a pre-pack is implemented by an administrator appointed out of court, often a sale will be completed before the unsecured creditors are aware of the pre-pack and have an opportunity to object. If the administrator is court appointed, the proposed pre-pack will need to be considered by the court and so creditors can make their objections to the court.

It remains however that a challenge to a pre-pack is extremely difficult, with the court generally placing reliance on the experience and judgment of the administrator if he favours a pre-pack.

Creditors also have a right to bring an action against an administrator if the administrator’s conduct has unfairly prejudiced the interests of the creditors, or where an administrator is not performing his functions quickly and efficiently. Again however, these are difficult tests to meet.

A quicker and cheaper way of challenging a pre-pack is to contact the Insolvency Service’s Pre-Pack Complaints Hotline. This may be used where creditors consider that they have been unduly disadvantaged by an administration (or any other corporate insolvency process).

What does pre-pack administration mean to a retail supplier?

Pre-pack administrations are not a perfect answer to everyone’s problem when a company is experiencing severe financial difficulties, but it is another tool available to owners or managers of a struggling business.

Overall, it is generally thought that pre-packs are a relatively quick and efficient way of transferring the business and/or assets of an insolvent company. They have a lesser impact on the costs involved compared with an administration. They can result in a better return for creditors, minimise disruption, save more jobs and limit the loss of goodwill with suppliers, customers and others. The latter is key for retailers who are heavily reliant on consumer confidence in their brands and assets.

To find out more, click here to speak with Michael Lewis

Retail CVA: Do they ‘unfairly prejudice’ landlords?

With consumers reducing their spending on non-essential items, retailers are experiencing a tough trading environment on the high street. Many retailers are entering into Company Voluntary Arrangements (CVA) to give them some respite. Since 2017, CVA’s have been used by large retailers such as Carpetright, Homebase, and Mothercare to close down a total of 954 stores.

CVAs were introduced to allow a company to continue trading and make an agreement with its creditors to pay back any debts owed over a set period of time. In order for a CVA to be approved, creditors representing 75% of the debt must agree to the proposed terms. Creditors can include employees, trade creditors and also landlord.

However, a vast majority of Landlords have limited options when faced with a CVA, and the recent Debenhams case Discover (Northampton) Limited and others v Debenhams Retail Limited and others [2019] evidences this. The High Court in this case held that “landlords should receive at least the market value of the property he is providing. He should not subsidise other creditors but nor should they be compelled to overcompensate him.”

On 9th May 2019, the Debenhams CVA was approved by 95% of its creditors. The effect of this CVA for landlord’s was store closures, a reduction in the rent, and a release of liability for Debenhams under any dilapidations claims. The CVA also prevented the landlords from exercising any forfeiture rights triggered by the CVA.

A group of landlords opposed to the CVA on five grounds. One of these grounds was that landlords are ‘unfairly prejudiced’ when the rent payable under a lease a lease is reduced. They argued that if Debenhams are in occupation of the property, they should be paying the full amount of rent under the lease, and the reduction of rent would be an expense to the landlord.

The Court rejected this argument on the basis that a few creditors may be “one-off” contracts which reflect the market price. Contrastingly, landlords may have fixed rents in a lease at a historic high figure, or the rent in the lease may increase automatically to exceed the true market rent. It was therefore held that it is not prejudicial to landlords to reduce rents under a CVA. These rents may properly reflect the market price even though the amounts may deviate from the rent in the lease.

To find out more, please contact Michael Lewis

Can you Extinguish a Right of Way Through an Informal Agreement?

This is the third of several case studies that partner Mike Lewis covered in their recent talk at Heathrow Airport for 80 surveyors as part of their CPD training. The recent case of Pezaro v Bourne highlights the fact that landowners need to ensure that informal agreements between them need to be documented.


The case related to three terraced houses in Hampshire. The Claimants are the joint beneficial owners of numbers 149 and 151, and the Defendants are the joint owners of number 147.

The owner of 147 had a right of way over number 149 and 151. The Claimants saw an opportunity to obtain planning permission and develop a block of flats at the rear of all three properties.

An informal agreement was entered into between the Claimants and the previous owner of number 147, to remove the right of way. Neither of the parties took any steps to formally remove the right of way from any of the titles to the properties.

The land at the rear of the gardens was subsequently purchased by a developer on 18 October 2006 and given a new title at the Land Registry. When the previous owner of 147 was contacted to arrange the formalities to remove the right of way, it transpired that he had sold the property to the Defendants.

The Claimants argued that the verbal agreement between them and the previous owner should be enforceable against the new owners of 147 on the grounds of proprietary estoppel.

It was held in court that the right of way was still in existence and was properly registered against the titles of all three properties, as no steps were taken to remove it. The right of way was therefore enforceable.

The Claimants in this case were unable to rely on the informal agreement entered into between themselves and the previous owner of number 147. This case therefore emphasises the importance of making sure that all steps are taken to register any changes, when where the agreement is informal in nature.

Furthermore, all informal agreements should be confirmed in writing and signed by both parties at the earliest opportunity. It may also be useful to include a provision requiring one party to take the necessary steps to make any required changes.

To find out more, please contact Sophie Hudson