Civil Procedure Rule Updates from 1 October 2024
Posted on 30th July 2024 at 17:10
By Sean Linley, Senior Costs Draftsman
Update 2/8/24 - More detail on the Fixed Costs Determination and 171st Practice Direction is now available here.
The Civil Procedure (Amendment No. 3) Rules 2024 has now been published and details changes which will come into force from 1 October 2024.
The headline changes are set out below:
- No sub £25k Clinical Negligence Fixed Costs - Notable by its omission but the Statutory Instrument includes no reference to any fixed costs proposals for the sub £25k Clinical Negligence Fixed Costs. This means for such a scheme to be implemented this October a separate Statutory Instrument would be required. This would be a highly unusual step. Given the CPRC had previously indicated if the rules were not finalised in June (and we know they were not) October implementation would not happen, this omission appears to be another clear indication there will be no fixed costs regime for sub £25k Clinical Negligence claims this year.
- Fixed Costs Determination unveiled - Part 45 will be amended to include the new process and procedure for Fixed Costs determination and a new bill document called a Precedent U. As the corresponding Practice Direction is yet to be unveiled we still don't know what the Precedent U looks like or what the recoverable costs under Practice Direction 45 will be. Here's what we now know:
There will be a separate process for a summary determination of fixed costs where the order for costs is made at a hearing. This will see the court make the determination, in absence of agreement, at the hearing itself. This means advocates will need to be prepared for any costs arguments at any final hearing. Where the court can't make a summary determination at the conclusion of the hearing, the court is able to direct that the amount of fixed costs or disbursements be determined with or without a hearing and can give such directions as it sees a fit, an extremely wide discretion. The costs of the determination will be treated as if it were an interim application under CPR 45.8. This means costs of anywhere between £250 to £333 plus VAT for profit costs.
Where a claim settles without a hearing and the only issue is costs then Part 23 will now be modified by Part 45. The application must be started by commencement of costs only proceedings. The receiving party must provide evidence in support of the application. together with the new Precedent U. The Paying Party will have an opportunity to file any evidence within 21 days of service of the application where proceedings were previously issued or withing 21-days of filing the acknowledgement of service where proceedings were not previously issued.
The determination will be dealt with on paper and without a hearing. The costs for the procedure will be fixed by an addition to Practice Direction 45, a new Table 17!
The Court will record its determination by annotating Precedent U. Any party can request an oral hearing within 21 days of the determination notice and if no oral hearing is requested the determination will be binding. Parties will be given at least 14 days' notice of any hearing. The kicker, however, is that any party who applies for an oral hearing must achieve an adjustment that is 20% within their favour or they will be responsible for adverse costs in accordance with CPR 45.8 (£250 to £333 plus VAT).
Under Part 46 new rules will be incorporated. Part 36 will not apply to any determination. This means that there will no longer be any opportunity to obtain Part 36 benefits in fixed costs disputes. A development that may well discourage parties from making offers in determination proceedings.
- ADR front and centre - The Overriding Objective will be updated at CPR 1.4(2) from "encouraging the parties to use an alternative dispute resolution (GL) procedure" to “ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution”. This is consistent with the Court of Appeal decision in James Churchill -v- Merthyr Tydfil County Borough Council.
Moreover, CPR 44.2(5) which details the conduct which the court can take into account when considering the order (if any) to make about costs will insert the following:
"whether a party failed to comply with an order for alternative dispute resolution, or unreasonably failed to engage in alternative dispute resolution"
Again reinforcing the focus and emphasis on ADR and the real impact it can have on costs if there is not engagement by a party.
- Clarity around Fast Track Complexity Bands - The Fast Track complexity band explanations as set out at Table 1, 26.15 will be expanded from "other money claims" to "other claims for a sum of money, whether the sum is specified or unspecified, except claims that fall under complexity band 1(b) [defended debt claims]".
- Clarity around VAT - CPR 45 will see some minor amendments to make clear VAT is recoverable in addition to the fixed recoverable costs.
- Claimants will be responsible for Defendant's costs where claim is struck out - CPR 3 and 44 will be updated to make clear that where a claim is struck out for the non-payment of a trial fee then the Claimant will be liable for the Defendant's costs by way of a deemed order.
- 28 Days to seek permission to appeal a Court of Appeal decision to the Supreme Court - Part 52 will be amended to provide a deadline for seeking permission from the Court of Appeal to the Supreme Court after the date of the decision of the Court of Appeal or a longer period as the Court of Appeal orders.
- Removing the distinction between a Master or District Judge - Part 2 will be amended to remove the distinction between Master or District judge so that both come within the defintion of "judge".
So some interesting developments afoot, more focus on ADR, streamlined fixed costs determination and some clarity around other areas.
We will keep an eye on developments, particularly the publication of the corresponding updated Practice Directions which will give us further details on some of the new rules which will come into force from 1 October 2024.
Should you have any queries arising from this article or upon costs generally then please do not hesitate to get in touch with our friendly team either via phone 01482 534567 or e-mail info@carterburnett.co.uk.
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