The extension should be welcomed as its intention is to provide greater certainty about legal spend for compensators.
On 20 April 2023, the Civil Procedure Rule Committee published the draft rules that will govern the extension of the fixed recoverable costs (FRC) regime from October this year. This extension is long-awaited, having been confirmed by the Government in September 2021 in its response to Lord Justice Jackson's 2017 report on Fixed Recoverable Costs and confirmation that implementation was postponed until October was provided in November 2022. However — it's happening and it is anticipated that the final version of the rules should be published at the end of May, the CPRC having previously committed to providing practitioners with as much notice of the detail of the new regime as possible.
It was confirmed earlier this month that the new FRC regime — for most money cases worth up to £100,000 — would apply in cases where proceedings are issued on or after 1 October, although, crucially, for personal injury claims, the new rules will apply only where the cause of action accrues on or after 1 October 2023, and will only apply to disease claims where the letter of claim has not been sent to the defendant before that date. Disease practitioners should note that, in respect of noise-induced hearing loss claims, the new rules implement the recommendations of the Civil Justice Council working group on fixed costs for these claims — full details can be found in Section VIII of Part 45 of the Civil Procedure Rules.
The Ministry of Justice had previously proposed that some claims, due to their complexity, should be excluded from FRC. These are set out in rule 26.9(10) of the new draft rules and include mesothelioma or asbestos lung disease claim, a claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults, a claim that the court could order to be tried by jury if satisfied there is in issue a matter set out in section 66(3) of the County Courts Act 1984 or section 69(1) of the Senior Courts Act 1981 and claims against the police involving an intentional or reckless tort, or relief or remedy in relation to the Human Rights Act 1998. Note however that this exclusion does not apply to a road accident claim arising from negligent police driving, an employer's liability claim, or any claim for an accidental fall on police premises.
In addition, the Ministry of Justice has delayed the application of FRCs to housing cases for two more years from October 2023.
The new fast track for claims with a value of up £25,000 will have four complexity bands (one to four in ascending order of complexity) with corresponding grids of costs for the various stages of a claim. Table 1 in the new Part 26.15 of the Civil Procedure Rules sets out the complexity band to which fast track claims will normally be assigned and whilst the parties are encouraged to agree the complexity band and have to state the agreed or claimed for band in their directions questionnaire, nevertheless the claim can be assigned to a different band if the court deems it appropriate. Existing fast track claims will be assigned to one of the four new bands.
Table 1
Complexity band 1 |
Complexity band 2 |
Complexity band 3 |
Complexity band 4 |
(a) road traffic accident related, non-personal (b) defended debt claims |
(a) road traffic accident related, personal injury (b) personal injury claims to which the Preaction Protocol for
Resolution of |
(a) road traffic accident related, personal injury (b) employer's liability (c) possession claims; (d) housing disrepair claims; and (e) other money claims |
(a) employer's liability disease claims (other (b) complex possession and housing disrepair claims; (c) property and building (d) professional negligence claims; and (e) any claim which would |
There will also be a new, intermediate track to which simpler multi-track cases valued at up to £100,000 will be allocated. Procedurally, something of a mix of the fast and multi-tracks, this too will consist of four complexity bands (again, one to four in ascending order of complexity with the corresponding grids of costs) and as with the new fast track, the complexity band to which these claims will normally be assigned is provided, this time in Table 2 in the new Part 26.16 of the CPR. The same rules apply in respect of the parties being encouraged to agree the band but again, with the court having the final say.
Table 2
Complexity band 1 |
Complexity band 2 |
Complexity band 3 |
Complexity band 4 |
Any claim
(b) the trial is not expected to last longer than one day, including: (i) personal injury claims (iii) defended debt claims |
Any less complex claim |
Any more complex claim |
Any claim which would normally be allocated to |
Healthcare practitioners should note that the introduction of FRC to clinical negligence claims worth up to £25,000 will not happen at this time, unless both breach of duty and causation have been admitted. All other cases will be dealt with through a separate process run by the Department for Health and Social Care, with its response to a consultation that closed a year ago still awaited.
Also worthy of note is that the FRC costs figures themselves set out in the 2017 Jackson report have been uprated for inflation. However, this has been done using the January 2023 Services Producer Price Index (SPPI), which is a lower measure of inflation than the retail prices index (RPI). The Ministry of Justice proposes to review the tables of costs and the extended FRC regime more generally in three years. In addition, the table of HMRC fixed commencement costs which were previously located in Table 7 of Part 45 has been simplified and is now at Table 11 in Part 45.
Further information about the Civil Procedure Rule Committee and the draft rules can be found on the Civil Procedure Rules Committee website and we will be commenting further on the implications of the new rules in due course.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.