Fixed Costs, Part 36, Mazur & More - Latest from the CPRC
The Civil Procedure Rules Committee Open Meeting, held on 8 May 2026, marked a historic milestone as the first such meeting to take place outside London, with Birmingham serving as the host city. The occasion was further distinguished as the final open meeting chaired by Sir Geoffrey Vos, Master of the Rolls, ahead of his forthcoming retirement. The meeting is always a useful session to ascertain the latest goings on in civil litigation and also offers an opportunity to raise questions of the committee.
This blog runs through some of the key costs talking points.
The headlines though are:
a) No post-Mazur CPR changes yet, time is needed to let the consequences of Mazur bed in.
b) Bill of Costs certification remains with the client or a solicitor for the moment.
c) Clinical Negligence sub £25,000 FRC reforms remain with the Department of Health and Social Care and it remains uncertain as to when these will be taken forward.
d) The view of the judiciary is that the 1% cap (or £1,000) for the costs of ‘initially completing Precedent H’ cover the preparatory work for the Precedent H presented at the CCMC i.e. encompasses time spent on amendments. It was accepted the wording of CPR 3.15(5)(a) was ambiguous and there was no judicial authority on the point and as such it could be an issue to be taken up.
e) It was accepted that there are inconsistencies with the post-October 2023 Fixed Recoverable Costs reforms including discrepancies between Fast and Intermediate Track Costs, issues around Interim Application costs and the interplay between Part 36 and Part 45. All of these issues will require further consideration and will form part of the on-going work on the Fixed Costs Stocktake.
f) On the Fixed Costs Stocktake there is no timescale with a report awaited from the MOJ.
g) Part 36 and Attersley is on the agenda but it was acknowledged this was a complex point which would likely take some time to address.
h) The nationwide rollout of the Simplified Costs Budgeting Pilot will happen but there are no further details on this as of yet.
i) Recoverability of interpreter fees on the Small Claims Track is an on-going consideration but at present is delayed.
j) There are no intentions to change Part 36 following the decision in Smithstone v Tranmoor Primary School [2026] EWCA Civ 13
k) On Ministry of Defence costs reforms, previously signposted late last year there was no further update or details to share. One to keep an eye open for.
Mazur Consequences – Who can certify a Bill of Costs and should there be an amendment to the definition of a Legal Representative in the CPR?
Sir Geoffrey Vos, Master of the Rolls (who was one of the justices involved in the Court of Appeal decision of Mazur) considered a question around whether the technical requirements of a certification of a Bill of Costs would be extended beyond merely a client or solicitor.
This reflects the decision in Barking, Havering & Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 (QB) (29 September 2021) and also the precedent certificates under PD 47 themselves which express that a bill of costs may only be validly certified by a Solicitor or a client. The view of the writer was that holding that a Bill of Costs may only be certified by a Solicitor or the client is anachronistic and does not properly reflect the modern legal industry.
Whilst it was acknowledged as ‘interesting’ and reflected an ‘inconsistency’ within the rules, it was said it was not a point which would be dealt with in the immediacy.
Similarly, the Master of the Rolls acknowledged further consideration of the definition of a Legal Representative may also be required but at present the preference was to let the consequences of the Court of Appeal judgment in Mazur first become clearer. Whilst there may be sense in ensuring there are no knee-jerk reactions, undue delay could create avoidable adverse consequences.
Vos did suggest these were issues which should be added to post-Mazur considerations in due course and asked that a note of them be made.
Does the 1% or 2% cover work updating the Costs Budget?
The CPRC considered the issue of whether the 1% is limited to the initial preparation of the Costs Budget. This presents itself where a budget is filed and served but then is ultimately updated or revised owing to, for example, judicial delay.
The CPRC advised that their understanding is the cap of £1,000 or 1% applies to the Costs Budget presented at the costs management hearing. It was accepted that the wording of the rules (referring to the 1% of ‘initially completing Precedent H’) remained ambiguous and there was no judicial authority upon the point. They suggested it may well be an issue someone wishes to take forward.
Clinical Negligence Fixed Recoverable Costs Update
A question which presents itself every year with the CPRC asked for an update on the proposals. The CPRC confirmed that the FRC proposals remain with the Department for Health and Social Care and until they deal with them then the CPRC have no involvement. This likely means there will not be any substantive updates in the near future.
Fast Track and Intermediate Track
A complex question was raised as to discrepancies between Fast Track and Intermediate Track Fixed Recoverable Costs. The CPRC were asked three questions:
a) Was it the intention that claims on the Fast Track would be remunerated above and beyond those on the Intermediate Track (even at Complexity Band 4 on the IT)
The CPRC advised that this was intended to ensure that costs are proportionate to the claims in question. The writer is not convinced this is a wholly satisfactory answer. Can it be the case that Intermediate Track claims are adjudged more harshly on proportionality than Fast Track? True, value is not the only determining factor but Fast Track Complexity Bands are more rigid as they stipulate case types, where as Intermediate Track Complexity Bands do not. This means that receiving parties can be worse off on the Intermediate Track than on the Fast Track. Can this really be what was intended?
b) Is the disjointed nature between how Complexity Bands are ascribed as between Fast and Intermediate Tracks causing inadvertent difficulties?
c) Is the disjointed nature of staging between Fast and Intermediate Track causing unintended consequences, specifically the fact that the second stage of FT is triggered on issue but for IT that triggering is not until receipt of the Defence?
It was accepted that there were problems that the government needed to address and within the wider implementation review process. The CPRC have advised these issues will be looked at. They also acknowledged this a complicated point (which it undoubtedly is).
Much of the Fixed Costs questions seemed to give deference to the awaited Fixed Costs Stocktake (see more on this below) so we will keep a close eye on that when it is reported back in due course.
Should Personal Injury claims be excluded from Complexity Band 1, Stage 1?
This followed on from the question above about the inconsistencies between Fast Track and Intermediate Track costs. The questioner raised a practical example of the discrepancy and also set out the level of work required on liability admitted personal injury cases. They raised the anomaly which I had drawn attention to several times previously with an illustrative example:
a) Fast Track, Employer’s Liability disease claim, pre-issue settlement of £17,500 would give rise to Fixed Recoverable Costs of £5,309 (CB4) (note Table 1 of CPR 26 confers that the normal Complexity Band for an EL Disease claim is CB4).
b) Intermediate Track, Employer’s Liability disease claim, pre-issue settlement of £60,000 would give rise to Fixed Recoverable Costs of between £3,452 (CB1) to £14,401 (CB4)
The CPRC advised that there was no answer to this at the moment but they hoped it would be taken into consideration as part of the FRC stocktake and wider implementation review.
The questioner suggested that PI claims should either be excluded from IMT, CB1, S1 or the costs figures for CB1 should be reconsidered.
What the CPRC meeting highlights is that there is dissatisfaction at how the post October 2023 reforms are working and the fact that there are some elements at present which appear to be incoherent and illogical.
Interim Application Costs under Fixed Recoverable Costs – Changes are needed.
It was confirmed by Mr Justice Trower that this is an area which needs looking at. The issue flagged pertained to the lack of guidance as to how interim applications should generally be dealt with on the Fast and Intermediate Track and the limited remuneration for applications as PD 45 Table 1 (ranging from £250 plus VAT to £750 plus VAT). It’s reassuring that the CPRC accept this is an issue which needs consideration and that steps will be taken to look at this.
Part 36 and Attersley
The CPRC confirmed that they will be considering the issues arising from Attersley and it was reflected that this was a complex issue which will need further consideration. It was acknowledged that this meant any changes or clarifications may be some time off yet.
Part 36 and Exceptional Circumstances / Vulnerability test
They agree a change should be made and looked at when capacity is available. The point here pertained to the wording of CPR 36.23 and 36.24 around the interplay with Part 45. Part 45.9 and 45.10 allow parties to seek costs exceeding fixed recoverable costs i.e. on an assessment basis where vulnerability and/or exceptional circumstances apply.
36.23(1) provides that a Claimant is entitled “the fixed costs” and “any applicable additional fixed costs”.
This could be given a narrow interpretation in that neither 45.9 or 45.10 can be said to be ‘additional fixed costs’. Additional fixed costs may be something akin to unreasonable behaviour which is a percentage uplift.
We have seen such narrow interpretations historically, see for instance in McGreevy v Kiramba [2022] EWHC 2561 (SCCO) (26 September 2022).
Whilst the Committee did previously advise that there was no intention to create such a curtailment, it was suggested that a simple amendment to remove the ‘fixed’ from ‘any applicable additional costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them” would provide the necessary scope under 36.23 to avoid any prospective satellite litigation.
Again it is positive that this is something the CPRC have accepted does require consideration. Part 36 remains an active and complex area.
FRC Stocktake
It was confirmed that there was no timetable on response yet but the Ministry of Justice are analysing the responses and hope to publish a response as soon as possible.
Nationwide extension of Simplified Costs Budgeting Pilot Scheme – it will happen.
The Simplified Costs Budgeting Pilot Scheme has been described as “a great success,” and, following a leadership consultation with senior members of the judiciary—who provided consistently positive feedback—the Civil Procedure Rules Committee (CPRC) has confirmed that it will now expand the scheme on a nationwide basis.
At present, no further detail has been provided as to the scope or timing of any expansion. The existing pilot forms part of broader work aimed at improving the proportionality of costs budgeting, particularly in light of recommendations made by the Civil Justice Council (CJC).
Currently, the scheme applies to a defined range of claim types across specific court centres. These include certain Business and Property Courts (BPC) claims in Manchester, Leeds, and Central London; County Court claims valued at under £1 million in Central London, Leeds, and Bristol; and High Court claims subject to Qualified One-Way Costs Shifting (QOCS) in Manchester or Birmingham.
It remains unclear whether any nationwide rollout would extend to all three strands of the existing pilot. However, earlier indications suggested that any geographical expansion may initially focus on extending the Business and Property Courts element of the scheme.
Recoverability of Interpreter Fees on the Small Claims Track
The CPRC are currently considering the position as to the recoverability of Interpreter Fees on the Small Claims Track but it was confirmed that this has been delayed as the CPRC had been asked by the Ministry of Justice to pause on their work on this pending some “statistical analysis”. They were clear though that this was a viewed as a delay to the work only.
Part 36 and consequences where a liability-only offer is beaten?
The CPRC were asked about the implications of Smithstone v Tranmoor Primary School [2026] EWCA Civ 13 and whether there would be any changes to Part 36 to address in CPR 36.17 to clarify when a liability-only offer has been ‘beaten’.
The CPRC confirmed they did not intend to make any changes to Part 36. They stated that percentage based offers can be made (as they can be made on whole or part of any issue).
It was advised that the fundamental test as to whether the benefits under CPR 36.17 is engaged is whether the judgment more or at least advantageous as the Part 36 offer. It was recognised that in money terms that was easy.
In Smithstone the issue was that the claim settled without any finding or admission of liability and therefore it was impossible to compare the outcome with the liability offer to decide if it was “at least advantageous”.
The CPRC advised that they felt they could not do much better than the current wording and as such following Smithstone no changes to Part 36 were considered necessary.
Plenty of considerations and work for the Civil Procedure Rules Committee to be getting on with and their programme shows no signs of abating. What’s clear is that there plenty to be thinking about.
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. Please e-mail info@carterburnett.co.ukor call 01482 534567 for a chat.