Fixed Costs Extension

Wed, 08 Sep 2021

Have you ever found that just as you finish writing a book on fixed costs, the Ministry of Justice announce they are extending the Fixed Recoverable Costs (FRC) regime across all fast-track cases and on most money cases up to £100,000?

For the vast majority of practitioners, but sadly not for myself, the answer is likely to be ‘no’. However, that does not detract from the enormity of the announcement that Sir Rupert Jackson’s 2017 report (“the Report”) and the 2019 consultation (“the Consultation”) on it will finally bear fruit, with government endorsement of most of Sir Rupert’s suggested changes.

The consultation response itself notes that it must be read with the Report and Consultation. Further, it then notes at paragraph 4.2 that “we are clear in our objectives as to what we want to achieve through FRC in principle, but we will need to engage with the Civil Procedure Rules Committee on the detail of implementation.”.  As such, given that the devil is always in the detail, it is only possible to give a broad idea of what the picture will look like post-implementation (whenever that is).

  • FRC will be extended across all fast-track cases up to £25,000;
    • Clinical negligence claims fall outside of these fixed costs, but its own FRC regime is being considered by a Civil Justice Council working group.
  • Cases will then be allocated within the fast-track to one of 4 ‘bands’;
    • Certain cases such as holiday sickness and credit hire will have automatic banding (Bands 2 and 1 respectively).
  • Noise induced hearing loss cases will get their own FRC regime;
  • Only Band 4 and NIHL cases will provide for counsels’ involvement in addition to trial advocacy;
  • Fixed uplifts apply of 25%, 35% and 50% for each additional claimant, beating a Part 36 or unreasonable behaviour, respectively;
  • ‘Intermediate cases’ between £25,000 and £100,000 will be encompassed in an expanded fast-track;
  • Excluded from the ‘intermediate cases’ will be mesothelioma/asbestos, complex PI and professional negligence, actions against the police, child sexual abuse, and intellectual property claims;
  • Intermediate cases will also be assigned one of 4 bands, with specific provisions for counsel or specialist lawyer’s involvement at various stages;
  • Costs budgeting in ‘heavy’ JR cases.

Three matters I think are worth drawing particular attention to. The first is the interaction with the existing PI fixed costs regimes. The new FRC was suggested by Sir Rupert to include such cases and the consultation response does not demur from that, so it seems that they will be included. Whether the various oddities that presently arise from the rules (as my book contains) will be encapsulated into the new regime, solved or otherwise, dealt with will no doubt depend on the CPRC implementation.

The second thing likely to be of primary interest to the Bar is that whilst the profit costs element suggested by Sir Rupert in his report came with an inflation uplift of 4%, the trial advocacy fees did not (at least compared to the PI fixed costs regimes). The Consultation and response specifically refer to further uprating Sir Rupert’s figures for inflation when implementation occurs, but it is not presently clear if that will also apply to trial advocacy fees.

Thirdly, Sir Rupert suggested the introduction of an ‘intermediate track’ between £25,000 and £100,000. The Consultation response declines to create a new track but as noted above, does create a separate set of 4 bands for cases within that range. The practical difference between these situations is difficult to ascertain at this time given the relative lack of information on the way cases will be allocated within the bands.

Notwithstanding all this, and given the lack of any implementation date, I would still suggest practitioners may find some benefit from “A Practical Guide to Personal Injury Fixed Costs in Portal and Ex-Portal Cases”, due to be published soon by Law Brief Publishing. In the meantime, I guess I had better start on the second edition.

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