28 February, 2023
As you may recall from Siobhan Hardy's detailed explanation in October 2021, the Government, in an effort to control litigation costs, previously decided that it would extend the application of fixed recoverable costs to civil claims in the fast track beyond personal injury, provide a new process and costs basis for noise induced hearing loss claims worth under £25,000 and extend the fast track to include new intermediate cases worth up to £100,000. That decision was taken in response to Sir Robert Jackson's 2017 Report on Fixed Recoverable Costs. 16 months on however and the amended rules have still not been published, let alone taken effect.
The Civil Procedure Rules Committee recorded in May 2022 that "the intention is for the rules to be approved by the CPRC at/by the December 2022 meeting, so that the FRC reforms are implemented in April 2023." That deadline has however since been removed. The Parliamentary Under-Secretary of State for Justice, Lord Bellamy KC announced towards the end of 2022 that the implementation timetable for the fixed recoverable costs reforms had been put back to October 2023, and this was the last update in terms of expected implementation dates.
The Civil Procedure Rule Committee confirmed at the meeting on 2nd December 2022 that the intention remains to publish the draft rules which will implement the reforms at the earliest opportunity. They have approved in principle changes to Part 26, Practice Direction 26, Part 28 and Practice Direction 28 to enable the reforms to proceed. We shall have to wait and see when the proposed wording is to be finally released and if the current due date will be maintained. We do know however that the current intended changes are not those originally announced in 2021. Whilst the intention is still to extend the applicability of fixed recoverable costs to claims up to £100,000 in value, the manner of doing so has altered and the proposal currently creates a new Intermediate Track instead to cover claims worth between £25,000 and £100,000 rather than extending the fast track as the Government originally proposed. There will still be provision though for 4 complexity bands within the track.
Given the work already undertaken on this issue, it seems highly likely that the fixed recoverable costs regime will be extended in a move that will be no doubt welcomed by defendants due to the certainty it will provide over the costs of litigation. If the October 2023 deadline is retained however it is likely that these changes will only apply to cases issued after the said deadline and so we may well see a surge of issued claims as we approach the last quarter of the year to avoid such restricted costs. The position in this regard should crystalise once we have confirmation of the finalised changes.
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