In July 2023 the MoJ launched a consultation on a number of issues arising out of the new FRC regime. The consultation considered a number issues to include;

  • whether costs on assessment should be fixed;
  • whether there should be fixed costs for Part 8 (costs only) claims;
  • the recoverability of inquest costs and restoration proceedings and how this should be dealt with in the CPR;
  • the issue of providing for the recoverability of advocates’ preparation in cases that are either settled late or vacated;
  • whether the fixed trial advocacy fees in Practice Direction 45 should be further uprated for inflation and if so, by how much;
  • 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 within the pre-action protocol letter of response.

The Government’s response to the consultation was published in February 2024 confirming the following:

  • The FRC figures will be uprated for inflation in line with the Services Producer Price Index between January and October 2023, an increase of 3.2%.
  • Trial advocacy fees on the fast track bands 1 to 3 will also be uprated in line with the Services Producer Price Index, in addition to a further 4%.
  • A new procedure to resolve FRC disputes called “Fixed Costs Determination” is expected to be implemented in October 2024. FCD will be a simplified assessment procedure resulting in a paper determination. The costs of this procedure will be fixed
  • The costs of Part 8 (costs only) claims will be fixed. The rule change for this is also expected in October 2024, although the figure has not yet been agreed.
  • By amending Part 45, the costs of inquest proceedings will be recoverable in addition to FRC’s on an hourly rate/time basis. This is expected to be in place as part of the April 2024 CPR revisions and is unlikely to be retrospective.
  • Costs incurred which are of and incidental to Restoration proceedings will become payable within the FRC regime, with additional sums being identified to reflect this work. It is also anticipate that this will be implemented in the April 2024 revisions.
  • There will also, hopefully from April, be revisions in respect of the advocates’ preparation costs regime to provide for recoverability of fixed trial advocacy fees where cases are either settled late or vacated by the court shortly before trial. The CPR will be amended to allow recover of:

Fast track cases – 100% of the advocacy fee where a claim is settled on the day of trial or the day before, and 75% where a claim is settled/vacated not more than two days before the trial date.

Intermediate track cases – 100% where a claim is settled on the day of trial or the day before, and 75% where a claim is settled/vacated not more than five days before the trial date.

  • The rules will be amended to ensure that clinical negligence claims captured by the 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.

Other changes outside of the consultation process include providing clarity regarding the 20-page limit for expert reports as well as confirming that, unless it is not in the interests of justice to do so, claims against public authorities for trespass will be automatically allocated to the multi-track.

6 April will also see a change to 45.1(3)(b) that appears to provide for parties to contract out of FRC as part of settlement. The rule confirms that, where FRCs apply and the court orders that a party is entitled to costs: “the court may only award costs in an amount that is neither more nor less than the fixed costs allowed by the applicable Section and set out in the relevant table in Practice Direction 45.” The following wording will now be incorporated into this rule: “…unless the paying party and receiving party have each expressly agreed that this Part should not apply”. This does not mean that the parties can agree in advance that an ongoing claim allocated to the fast or intermediate tracks will not be subject to FRC when determined by the court. Once a claim is allocated to the fast track or intermediate track, the court’s power to award costs is limited by rule 28.8 to awarding FRC unless there are exceptional circumstances making it appropriate to consider a claim for costs exceeding FRC.

The MoJ has committed to reviewing the extended FRC regime in October 2026, to include the tables of costs. It also plans to consult on the impact of the rules on vulnerable parties by no later than October 2026, although there will of course be a general election before then

For more information please contact

Rebecca Robson, Costs Lawyer

01480 220823

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