The government appears to have significantly altered its plans for implementing the fixed recoverable costs extension just weeks before the rules need to be signed off.

Newly-published minutes from last month's Civil Procedure Rule Committee meeting show that the government has changed its mind about introducing a separate ‘intermediate track’ for claims worth between £25,000 and £100,000.

The proposal for an intermediate track was put forward by Sir Rupert Jackson in his 2017 report which heavily influenced the government’s approach to fixed costs. But despite adopting his recommendations for cases up to £100,000 to be subject to fixed costs, the government’s consultation response said there was no need for introducing a new track. The Ministry of Justice said there was ‘simplicity and consistency’ in retaining the existing tracks and expanding the fast track to include those cases that Jackson identified.

But the CPRC meeting heard that, during preparations for the extension, it became apparent that some of the perceived practical difficulties of an intermediate track could be overcome. The new track would be a ‘very significant change’ for the civil procedure rules, the minutes noted, but the court service was content with the proposal. It is expected that designated civil judges will determine which district judges can hear intermediate track cases.

MoJ research quoted in its consultation response stated that from July 2017 to June 2018, there were 6,000 claims worth less than £100,000 in the multi track that would be eligible for the intermediate track.

The intention remains to secure the committee’s final approval of the new rules next month, in time for implementation in April 2023. But various policy points are still outstanding, including whether fixed costs for a particular stage include costs from earlier stages and the position on costs outcomes for contributory negligence. Actions against the police except for negligence, it was resolved in principle, will be excluded from the proposed intermediate track.

The Ministry of Justice has also given a commitment to regularly review FRC rates given increases in inflation. A further statement is planned in due course as government officials try to allay concerns from lawyers that rates will quickly be out of date.

The Association of Consumer Organisations, which supports claimant interests, questioned why major policy changes were still being debated so close to the implementation date.

Executive director Matthew Maxwell Scott said: ‘It is right that cross-industry stakeholders have the opportunity to respond to such far-reaching proposals, but it is extraordinary and frustrating that, after expending time, effort and energy on detailed submissions, a significant element of consultation has been scrapped at a moment’s notice with hardly any explanation.’

He welcomed the commitment to considering regular inflationary uplifts and said that inflation had been allowed to ‘eat away’ at existing static fixed costs for too long.

‘Without a formal adjustment process, consumers seeking redress will be forced to choose between tackling giant insurers without representation, or losing up to 50% of their compensation through fee agreements with lawyers trying to make ends meet. They also risk a much reduced choice in medical expertise to rely upon, and fewer barristers to help properly present it in court.’


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