You have spoken and they have listened!
The Ministry of Justice have recently published their response paper to the July 2023 consultation, in respect of issues relating to the new Fixed Recoverable Costs (FRC) regime. The amendments, which have now also been published, will come into force on 6th April 2024.
Following consideration of the responses to the July 2023 consultation, the MoJ have published their long-awaited determination of the amendments to be implemented – and it’s mostly positive news for Claimant practitioners. You can read the full response here.
A number of general changes, which were raised outside of the consultation process, are set to be implemented in April and October of this year, which include claims against public authorities for trespass, to be automatically allocated to the multi track unless it is not in the interests of justice to do so, and general variations to the wording of rules, to ensure greater clarity.
Within their response paper, the MoJ have confirmed that inquest costs will be recoverable, in addition to the fixed costs allowed under the regime. The amended CPR 45.1(10), makes it clear that the fixed costs ‘do not apply to costs incurred in respect of, or in connection with, inquest proceedings’. Furthermore, any costs incurred in relation to restoration proceedings, will be recoverable, in addition to the fixed costs albeit, these will be fixed at £1,280.00 and are specified within the new Table 15A of CPD 45.
There has also been an extension to the abated trial advocacy fees. In fast track cases, 100% of the fixed advocacy fee will be recoverable if the claim settles on the day of or the day before trial. 75% will be recoverable where a claim settles no more than 2 days before the trial date. Similarly, for intermediate track cases, 100% of the fixed advocacy fee will be recoverable if the claim settles on the day of or day before the trial date; however, 75% will be recoverable where a claim settles within 5 days of trial. This extension reflects the complexity of the cases within the respective tracks, and the preparation work involved.
Fixed costs are to be uprated for inflation, along with additional uprating to take into account the period between 2013 and 2106. The updated CPD includes the uprated fixed costs that are applicable from April 2024, and further inflationary rises for some advocacy fees will take effect in October 2024.
Lastly, and perhaps more pertinently, clarity has finally been provided in relation to clinical negligence cases. For a clinical negligence case to be suitably allocated to the intermediate track and thus, be subject to fixed costs, a full admission of liability must be given within the pre-action protocol Letter of Response. Previously, CPR 26.9(10)(b) was ambiguous and needed clarification as to what a full admission of breach of duty and causation entailed, along with an appropriate timescale for that admission. Clinical negligence cases, by their very nature, require an extensive amount of work to be undertaken before a Letter of Claim can be served. If, thereafter, a Defendant denies all or any aspect of liability, further and substantial investigation will be necessitated. The MoJ agreed and CPR 26.9(10) has now been amended as follows:
“A claim must be allocated to the multi-track where that claim is—
a) a mesothelioma claim or asbestos lung disease claim;
b) one which includes a claim for clinical negligence, unless—
- the claim is one which would normally be allocated to the intermediate track; and
- there has been an admission of liability in full, which means that the defendant accepts that the claimant has suffered loss, including the injury set out in the letter of claim under the Pre-Action Protocol for the Resolution of Clinical Disputes, caused by the defendant’s breach of duty of care; and
- the admission in paragraph (ii) is made in the defendant’s letter of response provided in accordance with the Pre-Action Protocol for the Resolution of Clinical Disputes, provided that the defendant has not raised a defence to the claim under the Limitation Act 1980”.
This reflects the original intentions of the Jackson reforms, which were that only cases where breach of duty and causation were admitted in full, would be suitable for the intermediate track and thus, fixed costs.
The MoJ have also announced that the costs of assessment and Part 8 costs, in cases that are subject to FRC, will also be fixed and be known as ‘Fixed Costs Determination’; however, the CPRC are still considering the rule drafting on these issues, and the MoJ hope that implementation of these changes will come into force in October 2024.
So generally speaking, what does this mean for our clients? Well, very little in the way that they run their cases, but it does mean that there is now greater clarity, higher fixed costs for cases falling within the regime, additional costs where an inquest or restoration proceedings are necessary, and a significant obligation on Defendants to provide a full and early admission of liability in clinical negligence cases, if they are expecting those cases to be allocated to the intermediate track and be subjected to fixed costs.
The MoJ have proposed to review the extended FRC regime in October 2026, which will also include consideration of the tables of costs. Watch this space!
Victoria Long, Senior Costs Consultant
05.02.2024