With the wide-ranging extension of the fixed recoverable costs (FRC) regime just 5 months away, Clarion are launching a new mini blog series to ensure the spotlight very much remains on the new regime and firms are fully prepared for its planned implementation on April 2023.
This miniseries aims to give its readers a key tip, or takeaway each month to assist firms with their ongoing preparations for the significant changes which are coming.
Familiarise yourself fully with the rules prior to implementation
The new rules are currently still being drafted, with the final draft set for a final review and determination at the next Civil Procedure Rule Committee in December. It is our understanding that the rules committee intention is to publish the agreed rule changes in good time, but as things stand there is no clear indication when that will be.
Our key tip in this month’s blog may seem like an obvious one, but the importance of familiarising yourself with the new rules cannot be overstated.
However, there is already substantial information available to firms on the coming changes, via the initial report prepared by Lord Justice Jackson in 2017, the consultation paper on the proposals, and the government’s response. Further key information can also be derived from minutes of the CPRC meetings.
The rule changes will impact not only CPR 45, but there will also be significant changes to CPR 26, and 28 as a result of proposed changes to the pre-action protocols, and smaller amendments to other rules. It has been indicated in the minutes of the rules committee’s July meeting, that with regards to rule drafting “pragmatism should take precedence over consistency of drafting, such that they will do the best they can, but that it may not amount to full consistency”. A complete redraft of the current part 45 had been considered and previously rejected. We can therefore assume that despite the best efforts of the rule drafters, there are likely to be areas which require additional scrutiny.
The minutes of the rules committee’s October meeting offer some further key information which firms effected by the coming rules changes should be aware of. These are namely:
- The government has now made a u-turn on their decision not to implement an extra track as part of the fixed costs extension. It is now indicated that there will now be an ‘intermediate’ track to deal with cases valued between £25,000- £100,000. It was observed that this is a very significant change for the CPR. Previously, there were plans to extend the fast track and treat these cases as ‘intermediate cases’.
- Civil Judges will determine which District Judges can hear cases on the new ‘intermediate’ track. It was identified that this may have wider consequences and draw HMCTS court staff into decisions about case banding. This is set to be reviewed further and certainly warrants further observation
- There are concerns within the committee regarding banding and the fact that it will be a difficult exercise in light of the plans that no further guidance will be given in the rules. It was acknowledged that there will be need to specific guidance for cases in which non-monetary relief is sought.
- The exclusion from fixed costs of actions against the police, will not extend to cover ordinary negligence claims, such as a claim arising out of a road traffic accident involving a police vehicle.
- Inflation remains a key consideration for settling the FRC values, and there is a desire for a mechanism in which inflation adjustments could be built into the rules and applied automatically; possibly via a self-calculating spreadsheet/prescribed form.
- QOCS is likely to be extended, and a claimant’s entitlement to costs is also be considered part of the overall fund against which set-off could be applied. A further extension is also likely so that a defendant can enforce a deemed order for costs (especially following acceptance of a part 36 offer) without the permission of the court.
- Increased costs incurred as a result of vulnerable parties will be recoverable on the standard basis, but this will be subject to parties achieving a figure on assessment which is 20% above the fixed costs which would otherwise be recoverable. There are no plans to amend the arrangements for disbursements for vulnerability in FRC cases. This is an important practical point and means that subject to any variations of this point once rules come into effect, unless a party achieves the 20% increase on fixed costs at an assessment, they may be unable to recover any fees for Counsel advising on settlement in cases of protected parties, or recover translators fees. This is pursuant to the Court of Appeal’s decision in Aldred v Master Tyreese Sulay Alieu Cham [2019] EWCA Civ 1780.
Daniel Murray is an Associate Costs Lawyer in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com