Tag: Fixed Costs

Costs Consequences of the Claimant’s Late Acceptance of the Defendant’s Part 36 offer

angelanakoLeave a comment

A recent Court of Appeal decision provided important clarification on how legal costs were calculated when a Part 36 settlement offer was accepted late.

Background

The Claimant in Attersley v UK Insurance Ltd [2026] EWCA Civ 217 was injured in a road traffic accident in March 2018. Whilst the claim began under the Road Traffic Accident (RTA) Protocol, it exited the protocol and in February 2021, the Claimant issued Part 7 proceedings, valuing the claim up to £150,000 supported by several expert reports.

The Defendant admitted liability in March 2021 and made a Part 36 offer in the sum of £45,000. The Claimant did not accept this offer within the 21-day relevant period set by the rules. Consequently, the claim was allocated to the multi-track in January 2022, which typically allows lawyers to recover their costs based on what is considered reasonable rather than fixed amounts. The Part 36 offer was accepted in July 2022.

As the Claimant accepted the Part 36 offer outside the 21-day relevant period, and once the claim had been assigned to the multi-track, there was a dispute as to whether the costs could be recovered on a standard basis or were limited to fixed recoverable costs.

Outcome

The Court of Appeal considered the version of the civil procedure rules which applied at the time and held that the key date is when the 21-day period for accepting the Part 36 offer expires, rather than when the offer is eventually accepted, meaning that Claimants who accept an offer after the relevant period will generally be entitled to the amount of costs they would have received had they accepted the offer on the last day of the relevant period. As during that 21-day period the claim remained within the fixed costs regime, the Claimant was entitled to fixed costs which applied at that stage of the proceedings.

The court highlighted that the rules governing settlement offers are designed to encourage early settlement and clarity surrounding financial risk, therefore Defendants should be able to rely on the costs environment that existed when the offer’s relevant period expired. Allowing later events, such as the case being allocated to the multi-track, to change the cost consequences would create unnecessary uncertainty. The court outlined that:

“it is hard to see why a Claimant who [accepted the offer outside the relevant period]…should be in a better position than one who accepts the offer within time.”

Conclusion

The key point of this judgment is that if an offer is made and expires while the case is still within the fixed‑costs regime, the fixed‑costs rules apply to the consequences of accepting that offer, even if the case later evolves or moves outside the fixed‑costs regime.

Although this decision was made in the context of the pre-October 2023 fixed costs rules, it is expected that this is the same approach the Courts will apply under the new fixed‑costs rules introduced in October 2023. That is because those rules are also built around clear stages and predictable cost consequences.

Angela Nako is a Paralegal in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Strike Out and Multiple Defendant Costs Entitlement: Clarifying the effects of both under Post-September 2023 Fixed Costs Rules

Daniel MurrayLeave a comment

District Judge Field, sitting in the County Court at Truro, has delivered perhaps the most interesting and seminal judgment of the new fixed costs era.

In MIL Collections Limited v My Shop 4 Ltd & Ors [2025] EWCC 38 (04 July 2025), the Court was asked to consider whether each of the 13 Defendants were entitled to fixed costs where the Claimant’s case was struck out for non-compliance with an Unless Order. The quantum of those costs was also considered, given events which meant determination of the award was not straightforward.

Case Facts

The Claimant was a company, whose business involved the purchase and recovery of debts. In late 2024, they had taken an assignment of debts owing by commercial entities to E.on Next Energy Ltd (‘Eon’). The debts varied in size.

Multiple claims were issued, which were transferred, piecemeal, to the County Court at Truro. In each case the Claimant had served a short template Particulars of Claim, and in many instances similar issues were being raised in Defence.. In the interests of the overriding objective, the decision was taken by the Court to manage the cases together, with the case allocated to the Fast Track and assigned to Band 1.

It later became apparent that multiple Defendants were co-ordinating their approach to the litigation and an identical Defence was being filed by each of them. All 13 Defendants in this case, had adopted this approach and thus an order was made on 28 April 2025 consolidating each of their cases and providing a tight timetable to trial.

Directions were subsequently given in several cases, which amongst other things, required the Claimant to file better Particulars of Claim, within 14 days of the order. In this case, this was to be by 13 May 2025, something the Claimant did adhere to. However, the Court took the preliminary view that the pleadings were still deficient and that unless order had not been complied with.

A hearing was listed to take place on 21 May 2025, to consider whether the claim had been or should be struck out. In the intervening period, the court sent out a notice dated 19 May 2025, listing a two day trial to take place across 14 and 15 July 2025. This is one of the first notes of interest in this case, on the basis that traditionally, as per the factors considered for allocation, matters will not usually be allocated to the Fast Track when the trial is expected to last no longer than one day. Here the Court exercised the discretion available to it pursuant to CPR PD 26 16.3(c), to still determine the case was not suitable for the Intermediate or Multi Track.

Until 19 May 2025, the Defendants had all been Litigants in Person, however, the 12th and 13th Defendants sought representation shortly before the final hearing. At the hearing on 21 May 2025, the Claimant accepted that there had been a breach of the unless order and that, consequently, the claim had been automatically struck out on 13 May 2025. The Claimant made an application for relief from sanction on the evening of 20 May 2025. Most of the hearing on 21 May 2025 was therefore concerned with the application for relief, which was dismissed.

The Parties’ Positions

At the conclusion of the hearing, the 12th and 13th Defendants sought their costs of the hearing pursuant to CPR 45.8 in accordance with Table 1 of PD45. These were determined at the hearing on 21 May.

With regards to the substantive litigation, the 12th and 13th Defendants sought fixed costs pursuant to CPR 45.44 and Table 12 of PD45 following the strike out of the claim; and the 1st to 11th Defendants each sought two thirds of the fixed costs in Table 12, pursuant to CPR 45(2)(a).

Due to a shortage of time, written submissions were ordered on the issues in relation to costs which were:

  1. The extent to which the fixed costs provisions apply at all in relation to a claim which is struck out;
  2. The applicable amount of fixed costs and the appropriate stage in Table 12 of Practice Direction 45
  3. Whether, where there is more than one defendant, each defendant is entitled to recover fixed costs in their own respect.
  4. Any entitlement to fixed costs in respect of unrepresented parties.

A.) The extent to which the fixed costs provisions apply at all in relation to a claim which is struck out

There was no dispute between the parties in relation to the allocation or assignment of the matter, which is traditionally a battleground on the new fixed costs regime. The Claimant here did dispute however, that there was an entitlement to costs by the Defendants, based on the specific wording in Table 12 of PD 45, which stipulates costs are payable where a claim “settles or discontinues“. There are also provisions for costs where the matter is disposed of at trial, which did not apply here. It was asserted that none of these conditions had been triggered and therefore no costs should be awarded. It was suggested by the Claimant that any liability should extend only as far as the interim application costs outlined in Table 1 of PD 45.

The Defendants’ position was that the triggers in terms of when an award for costs can be made, was non-exhaustive in Table 12 and that it would be an “absurdity” if a party whose case is struck out would escape liability for costs which would have flowed from, for instance, a discontinuance.

The Court dismissed the Claimant’s approach, confirming that the Table 12(B) did not contain an exhaustive list of the circumstances in which it applied. The Court went further, confirming that “those drafting the rules have clearly gone to extensive efforts to ensure that the fixed costs rules and Practice Direction address most circumstances and permutations, it cannot have been expected or intended that they would expressly deal with every possible circumstance which might arise in such a wide range of cases. The rules must be construed widely and purposefully.”

The Defendants were therefore entitled to costs of the action on accordance with Table 12.

B.) The applicable amount of fixed costs and the appropriate stage in Table 12 of Practice Direction 45

Given the listing of the trial in the intervening period between the deemed automatic strike out and the hearing on 21 May 2025, there was a dispute as to which was the applicable stage in Table 12 of PD 45. This was namely whether the matter fell into stage 2 which applies to case ‘from allocation up to listing for trial’; or stage 3, which applies to case ‘after listing but before the trial.’

The 12th and 13th Defendant’s drew  a distinction between the “listing” of a trial and the “fixing” of a trial. They submitted that stage 3 costs should apply, on the basis that case are traditionally listed in a floating window, with a fixed start date listed afterwards. Reference was made to guidance in the Chancery guide.

The Court found difficulties in accepting this approach, given that in the vast majority of Fast Track cases, the first case management order will provide for both allocation and provision for the trial to be listed either within a window or on the first available date after a particular date.

It was therefore determined that stage 2 costs applied.

C.) Whether, where there is more than one defendant, each defendant is entitled to recover fixed costs in their own respect.

The arguments here arose because of the ambiguity in CPR 45 regarding the position. Where there are multiple Claimants, the position is much clearer and the rules provide for the recovery of 25% of costs where additional Claimants are represented by the same firm of Solicitors.

After deliberation of several factors, including the position on cases allocated to the Multi Track, whereby Defendants are each entitled to their own costs, and the fact that had the  rule makers intended to deviate substantially from principles which would ordinarily apply in respect of costs, this would have been dealt with expressly in the rules, the Court determined that each Defendant was entitled to their fixed costs as set out in Table 12 of PD45. This was subject to the Court’s discretion to make an order under CPR 44.2(6)(a) that a party pay only a proportion of another party’s costs. The Court did not believe the fact that an award of two sets of fixed costs might produce a windfall for the Defendants was a relevant circumstance which should carry significant weight.

D.) Any entitlement to fixed costs in respect of unrepresented parties

Having determined that the individual Defendants were entitled to costs of the claim, the final issue to be determined by the Court was the position regarding the Defendants’ status as Litigants in Person and the level of entitlement.

CPR 45.4 deals with the position in relation to recoverable costs of Litigants in Person on the fixed costs regime, and confirms the application of CPR 46.5, which in turn confirms that Litigants in person are entitled to the same categories of costs and disbursements as represented parties, payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and the costs of obtaining expert assistance in assessing the costs claim. Where a party is a litigant in person throughout the entire claim, the costs allowed under this rule shall not exceed, except in the case of a disbursement. The amount to be claimed will be done so where the litigant can prove financial loss and is calculated at a rate of £19 p/h.

In the case of the 12th and 13th Defendants, the Court determined swiftly that, although they were acting as litigants in person as at the date of strike out, witness statement evidence of their representatives confirmed that prior to that, they had been acting for the Defendants by assisting in the drafting of the Defendant and working on an Amended Defence to the Amended Particulars of Claim.

The costs claimed by them were therefore deemed reasonable costs for legal services related to the conduct of the litigation and are therefore allowed under CPR 46.5(3)(b), subject to the two thirds cap referenced above.

The position in relation to the remaining Defendants was less clear. There was nothing to suggest that they were liable to representatives for fees and there was no evidence of financial losses. Invitations were made by those Defendants, for an award in line with that made in favour of the 12th and 13th Defendants.

However, the Court had difficulty in finding that the remaining Defendants had spent 91 hours engaging with the litigation, which was the number of hours that would have been required at the rate of £19 p/h to reach the level of costs awarded to the represented 12th and 13th Defendants. 7 hours was deemed reasonable and awarded to the 1st to 11th Defendants.

The Defendants sought an uplift of 50% on their costs in accordance with CPR 45.13 because of the Claimant’s conduct in the manner in which they pursued the claims.  The Court again refused this on the basis that the Claimant had already been penalised through the striking out of the claim and there was no evidence to support how the costs had been increased as a result of the Claimant’s conduct.

Summary

The decision is well thought out and provides useful guidance on numerous issues under the new extended fixed costs regime. It further exemplifies the Court’s discretion in terms of allocation and assignment of cases that may well have landed themselves on another track in view of the trial length and combined value. Further, the closing comments confirm a burden on receiving party’s to provide evidence in support of claims for additional sums pursuant to CPR 45.13 because of alleged poor conduct.

In conclusion, where a Claimant’s case is struck out against multiple defendants, each Defendant is entitled to recover their costs on an individual basis. It is essential that a specific trial date has been set, prior to the claim concluding to engage the fixed costs regime under stage 3 of Table 12 CPR PD 45, even if the trial itself does not take place. Furthermore, litigants in person are entitled to recover upto two-thirds of the costs awarded to legally represented parties, ensuring fair but proportionate remuneration for their time and effort in defending the claim. But this must be evidenced.

 Clarion’s Costs and Litigation Funding Department who can be contacted on any fixed costs issues, at our dedicated fixed costs email address at FRC@clarionsolicitors.com.

New Fixed Costs in COP – what you need to know about PD19B and the changes

Laura SugarmanLeave a comment

This month, it has been announced that there will be an increase to the fixed costs following a revised publication of Practice Direction 19B, applicable from 1st April 2024 for COP practitioners. This is a welcome increase, given that the previous fixed costs were deemed to be outdated, particularly in light of the recent increases to hourly rates as a result of PLK, GHR 2021 and GHR 2024.

The new fixed costs are as follows:

WORK CARRIED OUTPREVIOUS FIXED COSTS ENTITLEMENT (plus VAT)NEW FIXED COSTS ENTITLEMENT (plus VAT)
Application Work9501204 
1St GM year16702116
2nd and subsequent GM years13201672
Deputy Report265 336
Basic Tax Return250 317
Complex Tax return600 Reasonable/ or three quotes (ACC)
ConveyancingMin 400 max 1670 Reasonable /or three quotes (ACC)
Interim paymentsUp to 75% of WIP, raised by way of three quarterly billsUp to 75% WIP for the year or 75% of OPG105 estimate. whatever is lower. 

The increases to most of the fixed costs represents a 26% rise from the previous available figure.

As well as the increase to fixed costs, the threshold for hardship cases has also increased. This was previously £16,000 but this has now increased to £20,300. Therefore, if P has less than £20,300 in assets, the Deputy will be unable to have their costs assessed but instead will be limited to 4.5% of P’s assets.

The changes to interim payments is a welcome shift which will help cash flow for firms, as payments on account are not limited to quarterly, therefore billing monthly may be preferred so long as the OPG105 estimate is in line with the WIP incurred.

This month has also seen an announcement regarding the increase in court fees. Following a consultation, the government has decided to proceed with increases of 10% to 172 of the 202 fees that were proposed in the initial consultation. This will directly impact COP Practitioners. The court fee for requesting a detailed assessment has increased from £87 to £96, the court fee to appeal against a COP costs assessment decision has increased from £70 to £77 and the court fee for a request to set aside a default costs certificate has increased from £65 to £72.

There has also been an increase in court fees for Court of Protection applications. These have increased from £371 to £408. The court fee for appealing has increased from £234 to £257.

It is incredibly important that COP practitioners update their client care paperwork to reflect the new fixed costs if they are sought, in addition to the new court fees.

If you have any questions about any of the above, please feel free to contact Laura Sugarman at Laura.Sugarman@clarionsolicitors.com

Further Fixed Recoverable Costs to be introduced; Clinical Negligence cases with a value at settlement or judgment of up to £25,000.00 to be captured

Ellena HunterLeave a comment

The Government has released its response to the consultation on fixed recoverable costs in lower damages clinical negligence claims (‘LDFRC’), which can be found here.

Listen to the podcast below in which Daniel Murray and Ellena Hunter provide a whistle-stop tour of the cases that will be captured by the new scheme, the process to be followed under the protocols and the fixed recoverable costs of each stage.

Ellena Hunter and Daniel Murray are Associates in the Civil and Commercial Costs Team at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Judicial Review issued in relation to October’s Fixed Costs reforms

Daniel MurrayLeave a comment

It has been confirmed that Judicial Review proceedings have been issued by Association of Personal Injury lawyers (APIL), against the Lord Chancellor, in relation to the extended fixed costs rules which are currently due to come into effect on 1 October. Our understanding is that a challenge has been launched in relation to four key grounds:

  • The failure to consult properly on the inclusion of some clinical negligence cases under the extended regime, and specifically when they will apply.
  • The lack of certainty regarding how additional costs incurred because of vulnerable parties is to be dealt with. Including, the fact that no uplift can be applied without an application at the end of a case.
  • The lack of certainty in relation to representation at inquests and how those costs are dealt with.
  • Concerns that the wording of the proposed new CPR 45.1 (3), and the apparent inability of parties to contract out of the extended regime.

All these issues are ones which attracted largely negative commentary in the build up to the implementation of the extended regime. In particular, the lack of clarity as to the timing as to when an admission of breach of duty and causation in a clinical negligence matter might limit a Claimant’s Solicitors to fixed costs. Certainty on all the above is welcomed prior to the implementation of any new rules. Most of the issues are ones which are currently under consultation by the MOJ, with responses to the consultation open until 8 September.

By agreement, the Judicial review proceedings are to be stayed until three weeks after the government responds to the MOJ consultation. Parliament is currently in recess until 4 September, and with just over 5 weeks until the new rules are implemented, there is a race against time to see whether the government pushes ahead with implementation, or perhaps wisely, takes the decision to postpone plans further until key issues are resolved.

For further information on the consultation, please contact Clarion’s Costs and Litigation Funding Department who can be contacted on any fixed costs issues, at our new dedicated fixed costs email addressatFRC@clarionsolicitors.com.

More bumps in the road for Fixed Recoverable Costs extension, as MOJ opens further consultation prior to implementation

Daniel MurrayLeave a comment

It was announced on Friday, that the MOJ has opened a consultation which will run to 8 September, with responses invited on a number of key issues which the draft rules either failed to address or were ambiguously drafted in the first instance. Any changes which follow the consultation, are to be introduced in April 2024.

With a little over two months remaining until the planned extension of the fixed costs regime, the further announcement by the MOJ is indicative of the difficult road ahead for litigators and costs practitioners ahead of the implementation on 1 October.

The announcement comes following prior confirmation, that the rules would be amended on the same day that they are brought into effect, via Civil Procedure (Amendment No. 3) Rules 2023. The consultation focuses on the following issues:

  • whether costs on assessment should be fixed;

A streamlined cost assessment process, with a cap of £500 was an initial recommendation of Lord Jackson in his 2017 report, but something not addressed in the published draft rules in April of this year.

The MOJ now proposes to implement a regime, whereby the parties would initially attempt to agree costs, failing which, a short form claim form would be filed. This would be followed by replies, and an application for determination by the Court on papers. Costs of the determination would then follow the event, and be capped at £500, inclusive of any Part 36 uplifts.

Satellite costs litigation on the back of the extended regime, is something which is envisaged by most costs practitioners. Disputes regarding the appropriate track / banding when matters settle before allocation, and disputes in relation to disbursements as the regime covers larger cases, are just two of the areas where it is expected that issues will arise post settlement between the parties.

This streamlined regime may be a useful tool in settling disputes without a potentially drawn out process and oral hearings, but the proposals bring into question whether the proposed cap is sufficient to deal with the issues in dispute, especially if it were to be inclusive of a 35% uplift on fees. There appears to be no bite to a sensible Part 36 offer by parties prior to, or early in the process, and therefore no real deterrent for settling costs issues without a streamlined assessment.

If we are to look at the proposed fees for a case which will settle pre-allocation and could be captured in bands 2 or 3, typically a PI claim with liability and quantum in dispute. The difference in base costs between a band 2 case and a band 3 case, is £1,400. A proposed cap of £500 does not seem to be a sufficient deterrent for unjustifiably seeking to restrict a party to the lower fees, or alternatively, seeking the higher fees on borderline cases, and the reward seems to outweigh the risk.

One wonders whether the risks of paying costs on a standard basis would actually better achieve the apparent objective here, which is to deter this satellite costs litigation. The proposed order of steps is also questionable, with the paying party laying out their position first, with no opportunity to respond to the paying party’s submissions or replies. The process envisages a certain level of pre application communication between the parties, whereby the receiving party will already know the paying party’s stance before they serve a short form bill, whereas this will not always necessarily be the case.

  • whether there should be fixed costs for Part 8 (costs only) claims;

A capped fee of £300 is proposed for Part 8 costs only claims, which will be required when cases are settling pre-issue. Similar observations as to the effectiveness of the capped fee as a deterrent to satellite litigation are made here, as above.

  • the recoverability of, separately, (a) inquest costs and (b) restoration proceedings, and how this should be dealt with in the CPR;

Recoverability of inquest costs is a common dispute for those dealing with cases under Fatal Accidents Act 1976. It was recently decided in the case of Briley & Ors v Leicester Partnership NHS Trust & Ors [2023] EWHC 1470, that fees incurred dealing with pre-inquest reviews are recoverable on an inter partes basis.

The costs of attending such hearings, can be significant and greatly in excess of the fees which are to be recoverable on the new extended fixed costs regime. It is therefore proposed costs of attending inquests should be recovered separately on the fast and intermediate tracks, with costs being subject to assessment in the usual manner.

Currently, the only provisions for fees associated with restoration proceedings in the new regime, are in relation to NIHL claims, and are outlined in CPR 45.56. Solicitors will be able to claim an additional sum of £1,280, plus disbursements for carrying out this work. The consultation proposes that similar provisions are made for other cases in the new intermediate track.

  • the issue of providing for the recoverability of advocates’ preparation in the CPR, in cases which (a) are settled late or (b) are vacated; and
  • whether the fixed trial advocacy fees now in Practice Direction (PD) 45 of the CPR should be further uprated for inflation, and by how much;

The Bar Council has suggested that in cases settled or removed from the list on the day of trial, the full trial advocacy fee should be recoverable; and in cases settled or removed from the list within two working days of the date fixed for trial, 75% of the full trial advocacy fee should be recoverable. These proposals were not covered in Lord Jacksons 2017 report, but the MOJ considers these proposals have merit and invites stakeholder comment.

With regards to inflationary uplifts, The Bar Council and PIBA argue that there has been no uprating of the fixed trial advocacy fees since July 2013, and that the fixed trial advocacy fees in complexity bands 1-3 of the fast track (Table 12, CPR 45.44) should be uprated from then using the SPPI index.

It is also proposed that the trial advocacy fees in complexity band 4 of the fast track should be uprated by around 20%. The same uplift is suggested in intermediate track cases.   The MOJ does not see the merit in the proposed 20% uplift, but do propose that trial advocacy fees on the fast track, for complexity bands 1-3, will be increased via the SPPI to take into account inflationary increases between 2013 and 2016 (by 4%); and to inflate further for the 9 months between January and October 2023 all of the FRC figures covered by Lord Jackson, which would include the uprated fixed trial advocacy fee figures.  

(vi) whether to make explicit in CPR 26.9(10)(b) in respect of clinical negligence claims, that an early admission of liability must be made in the pre-action protocol letter of response.

This issue is one which in our view, required early address by way of satellite litigation once the new rules were in place, and its proposed review is one which should be welcomed.

Within Lord Jackson’s 2017 report, it was initially proposed that clinical negligence cases would only be captured by the fixed costs regime, where admissions of breach of duty and causation were made within the letter of response. With the Department of Health and Social Care’s 2022 consultation on fixed recoverable costs in clinical negligence matters, the inclusion of fixed costs in any clinical negligence matters was one which took a lot of people by surprise when the draft rules were published in April.

The absence that any admission should be made within the letter of response, was one which opened the door for significant work being incurred by Claimant’s Solicitors prior to allocation, in the belief the matter would be allocated to the Multi Track, which would not necessarily be remunerated if an admission were to be made prior to the allocation date.

It also brought into question, whether applications for re-allocation / assignment, would be made by Defendant’s if an admission was made after allocation. Under the proposed new rules, the effect of this reallocation would mean only the costs of the final allocated track would be recoverable for the entirety of the claim, leaving the Claimant with an even greater potential significant shortfall in recoverable costs.

It is proposed that there is now the added requirement for an early admission to be made in cases where the cause of action is 1 October or afterwards before a case can be allocated to the intermediate track. The MOJ point out that it is unlikely that any new clinical negligence claims, where the cause of action accrues on or after 1 October, will be subject to early admission and allocation to track in advance of 1 April 2024.

However, the fact that it remains a possibility, albeit a slim one, raises the question as to why the rule is not amended prior to 1 October.   Further Points: Inflation The MOJ has further announced that, whilst inflation remains high they will provide further exceptional uprating to the fixed costs regimes, with figures to be uplifted further to cover inflation since January 2023. Whilst this is a welcomed announcement, it raises the question as top why the same measures cannot also be applied for existing fixed costs figures in portal matters, which are also outlined in PD 45, and have not been reviewed since 2013, when they were decreased from existing figures.  

Final Comments

Overall, the consultation must be welcomed as it will address some crucial flaws in the draft rules. However, some of the proposals still require further revisions, otherwise they will not meet the goals they set out to achieve.

With this being the second acknowledgment that the rules are by no means fit for purpose in their current draft, following from the amendments announced by the Civil Procedure (Amendment No. 3) Rules 2023, it also raises the question as to why their implementation cannot be pushed back further, in order to iron out at least a few more of the apparent wrinkles. Readers are strongly urged to respond to the consultation and can do so by sending responses to FRCconsultation@justice.gov.uk by 8 September.    

The consultations will be discussed at our free fixed costs seminar on 6 September. The seminar will focus key issues in relation to the new rules, including practical guidance on the new banding and allocation rules. Click here for more information and to register to attend.

For further information on the consultation, please contact Clarion’s Costs and Litigation Funding Department who can be contacted on any fixed costs issues, at our new dedicated fixed costs email address at FRC@clarionsolicitors.com.

Access to Justice Prevails : Court of Appeal rules that Translator Fees for Trial are recoverable in Fixed Costs Cases

Daniel MurrayLeave a comment

In a significant ruling for litigators who deal with cases captured by the current fixed costs regimes, the Court of Appeal in Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 has ruled that the fees of a translator or interpreter were recoverable in a case which settled on the morning of Trial.

Background

The dispute regarding the recoverability of the fees was one which arose following a successful personal injury claim brought by Mr Santiago, a Brazilian national who spoke Portuguese. His claim had been brought under Section IIIA of CPR 45 (those falling outside of the Pre-Action Protocol). At first instance, Deputy District Judge Sneddon, felt constrained by the Court’s previous decision in Cham (A Child) v Aldred [2019] EWCA Civ 1780, [2020] 1 WLR 1276, and disallowed the fees, whilst acknowledging that her instinct told her otherwise. Permission to appeal was subsequently granted.

The Court in Cham, a case in which the central issue was the recoverability of Counsel fees for advice, had determined that in cases progressing under Section IIIA of CPR Part 45, those advice fees were not recoverable as a disbursement under CPR45.29I(h), which permits recovery of a disbursement which is “reasonably incurred due to a particular feature of the dispute.” Lord Justice Coulson, sitting in that matter, had went on to summarise that whether the Claimant was a child, or an individual who could not speak English, then those features were a characteristic of the Claimant, not the dispute, and therefore any provision for recovery of such fees were accounted for in the sums allowed for fixed profit costs, and no additional sums should be allowed as a disbursement.

The Decision

Lord Justice Stuart-Smith determined that the comments by Lord Justice Coulson in Cham’ were strictly obiter, with the case determining the position in relation to Counsel fees for advice, and not fees of translators and interpreters. Therefore, the decision was not binding upon him.

He went on to determine that “by CPR 1.2(b), the Court “must” seek to give effect to the overriding objective when it interprets any rule. The first issue, therefore, is one of principal………it seems to me to be clear beyond argument to the contrary that an interpreter is essential if a person or witness who does not speak adequate English is to participate fully in proceedings or give their best evidence.”

LJ Stuart Smith went on to confirm that despite arguments on behalf of the paying party to the contrary, the fees of translators were not encompassed within Table 6B of CPR 45, which contains the specific provisions for recoverable Solicitor’s fees for cases under Section IIIA, and that “the fact that the provision of independent interpreting services will not be provided by a party’s solicitors or counsel as part of the provision of their legal services provides strong support for the submission that they must be recovered”.

The need for advice in cases involving minors or protected parties was distinguished from the need for an interpreter, on the basis that cases involving minors can still proceed to a settlement without the advice, and can still be endorsed by the individuals when they reach the age of majority, whereas  “interpretation of sub-paragraph (h) that precluded the recovery of reasonably incurred interpreter’s fees in a case such as the present would not be in accordance with the overriding objective because it would tend to hinder access to justice by preventing a vulnerable party or witness from participating fully in proceedings and giving their best evidence.”

Commentary

Whilst this ruling is one which will no longer be relevant to cases with a date of incident on or after 1 October 2023, and the new CPR 45.59 expressly permitting recovery of these fees, it will no doubt be most welcomed by litigators dealing with the runoff of cases still captured by the current regime.

It will also be interesting to see if the strong views on access to justice lead to a review of the recovery of translator fees in cases which proceed under the various Pre-Action Protocols, and in which these types of disbursements are currently not recoverable. No variations to this approach are encompassed within the new rules either.

Disbursement disputes on new fixed costs regime is one of the topics which will be discussed at our seminar on 6 September. The seminar will focus key issues in relation to the new rules, including practical guidance on the new banding and allocation rules. Click here for more information and to register to attend.

For further information on this decision, please contact Daniel Murray, who is an Associate in Clarion’s Costs and Litigation Funding Department and can be contacted at daniel.murray@clarionsolicitors.com. 

10 years on from LASPO: Where we were, where we are now and where we are going.

Ellena HunterLeave a comment

As of last month, it has been 10 years since the implementation of LASPO; which implemented several of Lord Justice Jackson’s recommendations from his 2010 final report.

Listen to our podcast below in which Andrew McAulay and Ellena Hunter discuss how the implementation of LASPO and Lord Justice Jackson’s other recommendations have changed the world of costs, whether the same has achieved Lord Justice Jackson’s aim to control costs and promote access to justice and what the future of civil litigation may look like with the expansion of fixed recoverable costs.

Click here to tune into Anna Lockyer and Daniel Murray discussing 10 years of costs budgeting and what the future of costs budgeting may look like.

Click here to book your place on our Fixed Costs Masterclass Seminar on 6 September 2023.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Update on implementation of the extension to fixed recoverable costs

Robert PattersonLeave a comment

This third instalment of Clarion’s mini-series on preparing for the forthcoming fixed costs reforms, looks at recently announced changes following the Civil Procedure Rule Committee meeting on 3 March 2023.

It was intended that the new rules would take effect in October 2022, however implementation was delayed until April 2023. It was then announced in November 2022 that there would be a further delay until October 2023 due to the complexity of the reforms. It is still intended that the new rules will take effect from October 2023, however there will be changes to the scheme when it comes into effect.

Latest developments

The most important development is that there will be a general transitional provision whereby the new rules will apply to claims where proceedings are issued on or after 1 October 2023, save where the claim is for personal injury (including disease claims). In personal injury claims, the new rules will apply where the cause of action accrues on or after 1 October 2023 and they will apply to  disease claims where the letter of claim has not been sent to the Defendant before 1 October 2023.

A proposed new practice direction has been drafted setting out the rates for the fast track, intermediate track, and noise induced hearing loss claims. Previous versions of the rates were based on an initial report prepared by Lord Justice Jackson in 2017, and it has now been confirmed the rates will be uprated for inflation using the January 2023 Services Producer Price Index. This is an interesting development, as it was not expected that the rates would be uprated.

Other changes being considered include amended provisions in respect of disclosure to achieve a consistent approach between the fast track and intermediate track.

Next steps

Further drafting work will continue and it is anticipated that the final draft amendments will be presented to the committee ahead of the next meeting on 31 March 2023. This mini-series will be updated as and when further information becomes available.

Robert Patterson is a Senior Associate in Clarion’s Costs and Litigation Funding team. You can contact the team at CivlandCommercialCosts@clarionsolicitors.com

Preparing for Fixed Costs reforms: Part 2

Daniel MurrayLeave a comment

In the second part of Clarion’s mini-series aimed at helping litigators prepare for the upcoming fixed costs reforms, we look at some interesting developments since the first part of the mini-series was published in November 2022.

Delay to the implementation of the extension to fixed costs

The biggest development is the announcement by the Ministry of Justice  that the implementation of the new fixed costs regime has been delayed by 6 months until October 2023.

Lord Bellamy announced on 18 November 2022 at the Civil Justice Council’s National Forum on Improving Access to Justice: “Extending FRCs requires an extremely complex set of reforms…”

“I know it hasn’t been an easy task. I know that these reforms have particular implications for housing cases, and I am grateful for the constructive input of housing providers which we continue to consider. 

“Progress has been made, and we hope the rules will be approved in the near future. But we’re also very conscious of how important it is to get this right.  

“That’s why I can today confirm that we’re giving these reforms a little more time… and will implement the extension of FRCs in October 2023, rather than next April as originally planned. We think this will give the sector more time to adjust to the new regime.”

It had previously been announced by Lord Justice Birss (Chairman of the CPRC)  that it was the intention of the committee to have a draft copy of the rules out to the profession  before they were approved. However, difficulties were identified in the minutes of the  committee’s October meeting regarding the drafting of the new rules, which indicated that it was not going to be possible to have the rules drawn in time.

The minutes from the December 2022 CPRC meeting, indicate that there is still an intention to provide the rules to the legal profession in draft form prior to their approval and it may well be the case that there is a copy for us to comment on in the next instalment. 

Further delays to the implementation of fixed costs in housing disrepair cases

Housing disrepair cases were set to become a new area of law covered by the extension. The MOJ announced earlier this month that the implementation of fixed costs in these cases will be subject to a further two-year delay, in addition to the October 2023 extension referenced above.

Resultantly, the earliest these reforms will be in place is October 2025, which takes us beyond the timeline for the next general election and brings into doubt whether the next government  will still have an appetite  to implement the proposals. 

Whilst this is good news for tenants and their Solicitors, the news will ultimately come as a blow to landlords faced with claims in which the legal costs often far exceed the costs of repairs.

Recovery of agency fees under the fixed costs regime

An interesting decision at County Court Level from District Judge Phillips, a Regional Costs Judge, was released in January 2023, which in our opinion has ramifications not only for the current fixed costs regime , but also the extended regime which will come into effect in October 2023. We are grateful to John Meehan of Kenworthy’s chambers for sharing a copy of the judgment with us.

District Judge Phillips, sitting in the County Court at Cardiff, confirmed in Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January 2023), that, as things stand, agency fees are recoverable.

The case arose from a claim for personal injury in a low value RTA. At the costs hearing on 5 January 2023, the Judge dealt with several issues but the key issue in dispute was whether or not medical agency fees  were recoverable in addition to expert fees and any fees incurred obtaining medical records pursuant to CPR 45.19.

The Claimant’s Solicitors had obtained expert evidence via a medical agency and the invoices produced in support did not include a breakdown of the agency fees which were incurred in procuring that evidence. The Defendant argued that the agency fees were not recoverable, and it was only the expert’s fee itself that was recoverable. The Defendants argued that any medical agency cost were subsumed within the fixed costs that were recoverable by the Solicitors.

The Judge distinguished this case from the decision in Aldred v Cham (2019) EWCA Civ 1780, where it was held that Counsel’s advice fees in portal fixed costs cases were subsumed within Solicitor’s fixed costs awards.

The Judge held that the cost of obtaining a medical report, did include the fees of the agency. At paragraph 56 the judge stated: “had the drafters of the Rule and the Rule Committee wanted to limit the fees recoverable to those only paid to the doctor, they could have quite easily made this clear in the Rule, they chose not to do so.”

The Judge also went on to confirm that if he was wrong in determining that the fees were recoverable as a disbursement, then the Court was still able to allow a reasonable sum for medical report fees, taking into account the guidance in CPR 44.3 and CPR 44.4.

Further important comments were made by District Judge Phillips, who indicated that it would be helpful if breakdowns were provided on invoices of the time spent by experts in preparing reports, as well as a breakdown of agency fees.

This latter guidance, in our opinion, could be significant ahead of the extension of the fixed costs regime. As the regime expands to cover cases of greater value, the level of expert fees sought under the fixed costs regime will increase, as will  the number of fixed costs disbursement disputes. This is on the basis that a lot of the cases which will be captured by the regime currently fall under the provisional assessment procedure, in which disbursement disputes are common.

Assuming that no provisions are made within the new rules which preclude the recovery of agency fees, ahead of the extension it is advisable to engage in discussions with agencies to establish whether invoices can be produced which provide a clear breakdown of agency and expert fees, to assist the Court with disputes.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.