Interim application costs in the intermediate track – by Rupert Myers
11 March 2026Last week in an interim application to rely upon undisclosed documents in a case listed for trial which had already been allocated to the Intermediate Track, the issue of whether fixed costs always apply to interim applications in intermediate track cases was raised. There is very limited authority on the point. Having successfully opposed the application, I persuaded designated civil judge (East Anglia) Her Honour Judge Walden-Smith that fixed costs do not have to apply where there are exceptional circumstances.
The relevant parts of her judgment are below, and may be helpful to practitioners grappling with interim applications on the Intermediate Track:
It is clear that CPR does give the court a discretion to award costs outside the fixed costs regime for claims to which section VII applies, that is intermediate track cases, at whatever stage costs are awarded.The reason for this conclusion is as follows.
CPR 45.8 provides that: Where, in any claim to which Section VI, Section VII or Section VIII of this Part applies, the court makes an order for the costs of a pre-action or interim application, the costs which a party may be allowed are those set out in Table 1 with any appropriate court fee.
The effect of PD45 Table 1B is that interim application costs are part of the intermediate track fixed costs structure.
CPR 45.1(3) provides that fixed costs for Section VII claims are subject to the application of any rule by which costs are “to be allowed, disallowed, increased or reduced.”
CPR 45.9 provides that:
(1) The court may consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in Section VI, Section VII or Section VIII of this Part where there are exceptional circumstances making it appropriate to do so.
(2) If the criteria in paragraph (1) are met, the court may—
(a) summarily assess the costs; or
(b) make an order for the costs to be subject to detailed assessment.
Consequently, if there are exceptional circumstances making it appropriate to consider a claim for an amount of costs greater than the fixed recoverable costs in an intermediate case, then that applies to where it is an application for costs outside fixed recoverable costs in an interim application.This is entirely consistent with the determination of Sheldon J. in Mazur v Charles Russell Speechleys [2025] EWHC 2341 and, while his comments about costs outside the fixed regime, were obiter, they follow the same reasoning as this case.
It is clear that there is a high bar to finding exceptional circumstances and that it is not simply something that takes it out of the general run of cases. It is important with a fixed costs regime that the parties have certainty and know what costs they will be incurring. See Ferris v Gill [2019] EWHC 952. That need for certainty does entirely remove the costs discretion – but it is only to be in those cases where there are exceptional circumstances.
I found that this application fell within exceptional circumstances given the behaviour of the defendant not simply in failing to disclose when it should, but its wilful disregard of court rules and orders, its failure to comply with the overriding objective, and the potential impact on the intermediate trial which is due to take place next week. I gave further reasons for finding exceptional circumstances in the extempore judgment.
The rules clearly allow for costs to be assessed.
If you require any further assistance with litigation in the Intermediate or other tracks, please contact East Anglian Chambers for specialist legal advice, drafting, and representation.
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