The extension of fixed recoverable costs is likely to come into effect from next April, it has emerged.

Officials at the Ministry of Justice have confirmed to various sources that April 2023 is now the intended start date for the change, subject to Civil Procedure Rule Committee agreement.

The government intends to impose fixed recoverable costs (FRC) across the fast-track and in most money cases worth up to £100,000.

The reforms largely mirror the recommendations of Sir Rupert Jackson from 2017, and include new rules on penalising delays in the resolution of cases, with an uplift where a Part 36 offer has been beaten or one party has engaged in ‘unreasonable behaviour’.

There had been speculation that the extension could be implemented as soon as October this year, but that appears to have been premature. Practitioners will now start adjusting their business model with around a year until implementation.

Meanwhile, the MoJ has published a new consultation to consider how to ensure those parties or witnesses who are classed as vulnerable are not disadvantaged if their cases are within the scope of FRC.

The issue was highlighted by the Civil Justice Council in 2020. leading to changes in the CPR to allow for additional protections for vulnerable parties and witnesses.

While it remains the MoJ position that it is not appropriate to define vulnerability further, ministers accept there can be clearer explanation of the circumstances in which it can lead to an increase in fixed costs.

The consultation document states: ‘FRC are not intended to reflect the precise costs of every case, and there is an inevitable element of "swings and roundabouts". While there will be many cases where vulnerability is an issue and may require extra work compared with an average case, the vulnerability in itself does not automatically generate exceptional extra work to require an uplift.

‘It will depend in part on the vulnerable person (the extent of vulnerability) and in part on the claim and the extent to which the vulnerability affects the pursuit or defence of that claim.’

The MoJ proposes to give judges discretion to determine whether the vulnerability of those involved has required extra work which would justify additional costs. This process would allow for a 20% uplift and would only apply retrospectively – so judges need to be satisfied that extra work has been incurred, not that it may need to be.


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