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The April 2024 Fixed Recoverable Costs CPR Revisions – A Mopping Up Exercise?

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1 February 2024 saw the MOJ finally respond to its July 2023 Costs Consultation, as well as summarising other changes not addressed in the consultation…and it’s a bit underwhelming to be honest. There seems to be little, if any, deviation from what the Government indicated their intentions were in the consultation itself. There’s also likely to be further delay in the implementation of procedures for (and the fixed recoverable costs associated with) …of which there are likely to be many once the regime bites.

The July 2023 consultation considered the following issues:

  • whether costs on assessment should be fixed;
  • whether there should be fixed costs for Part 8 (costs only) claims;
  • the recoverability of, separately, (a) inquest costs and (b) restoration proceedings, and how this should be dealt with in the CPR;
  • the issue of providing for the recoverability of advocates’ preparation in the CPR, in cases which (a) are settled late or (b) are vacated;
  • 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; and
  • 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.

There were 74 responses to the consultation which reflects either the contentment, the weariness and/or the apathy of stakeholders in respect of the new FRC regime.

In summary, the Government’s way forward is as follows.

  • Whether costs on assessment should be fixed

A new procedure will be implemented by the Government, “hopefully” in October 2024 (but certainly not in April 2024), to resolve FRC disputes. This procedure will be called ‘Fixed Costs Determination’ (FCD) and will be a simplified assessment procedure resulting in a paper determination. The costs of this procedure will be fixed. Rupert Jackson suggested a rather unscientific sum of £500 plus VAT and Court fee. Some respondents to the consultation sought, however, to identify the specific word needed to resolve such disputes and proposed figures upwards of £750 plus VAT and Court fees for a paper resolution with additional sums where an oral hearing is required. The Civil Procedure Rule Committee (CPRC) “…are still considering  the rule drafting on this issue” apparently.

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

The Government intends to introduce fixed recoverable costs for the preparation and issuing of Part 8 costs-only proceedings. The figure has not yet been agreed and, again, the government “hopes” to have this implemented in October 2024 as opposed to April 2024.

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

Inquest Costs

Costs incurred which are of and incidental to Inquest proceedings will become payable in addition to FRCs and on a conventional costs basis (i.e. on an hourly rate/time spent basis). This should be in place as part of the April 2024 CPR revisions. It is unlikely, however, to have retrospective effect and so would leave a lacuna for work done in claims caught by the FRC regime between October 2023 and April 2024.

Restoration proceedings

Costs incurred which are of and incidental to Restoration proceedings will become payable within the FRC regime and additional sums will be identified to reflect this work. This, too, is hoped to be implemented in the April 2024 CPR revisions. Will the sums to reflect this work be a ‘finger in the air’ exercise?

  • The issue of providing for the recoverability of advocates’ preparation in the CPR, in cases which (a) are settled late or (b) are vacated

The April 2024 CPR revisions will hopefully see the following changes in respect of advocates’ preparation costs:-

Fast Track

Advocates of successful Claimants will recover:-

  • 100% of the Trial Advocacy Fees in Table 12, Section D where the claim settles/is vacated on the day of, or the day before, trial;
  • 75% of the Trial Advocacy Fees in Table 12, Section D where the claim settles/is vacated not more than two days before the trial date.

Intermediate Track

Advocates of successful Claimants will recover:-

  • 100% of the Trial Advocacy Fees in Table 13, Section 10 where the claim settles/is vacated on the day of, or the day before, trial;
  • 75% of the Trial Advocacy Fees in Table 12, Section D where the claim settles/is vacated not more than five days before the trial date.
  • 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

Inflated figures will be introduced as part of the April 2024 CPR revisions to reflect inflation.

  • 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

The Government will amend the rules to ensure that clinical negligence claims caught by the new FRC regime are allocated to the Intermediate Track only where there is a full admission of liability within, or before, the pre-action protocol letter of response.

The Civil Procedure (Amendment No. 4) Rules 2023 were laid before Parliament on 1 February 2024 with the intention that they will come into force on 6 April 2024. To keep up to date with all of the latest changes to the FRC regime and troubleshoot any queries with industry peers, why not become a member of FRCConnect? For more details visit www.frcconnect.co.uk now.