Fixed Costs Update - 9.11.2023
Posted on 9th November 2023 at 16:35
By Sean Linley, Senior Costs Draftsman
The Civil Procedure Rules Committees October Meeting Minutes have been published and contain some significant developments. This blog runs through the key developments.
October Reforms Updates
1. Confirmation that the CPRC are looking at issues outside of consultation:
- Changes to CPR 45.1(3) to deal with concerns raised about whether the new rules prevent parties from contracting out of fixed costs. This is an issue raised by APIL in their Judicial Review proceedings.
- The length of expert reports and whether this should be altered. Currently Part 28 provides that "any expert report shall not exceed 20 pages, excluding any necessary photographs, plans and academic or technical articles attached to the report."
- An update to CPR 28.12 which provides that Case management conference "the court shall fix a case management conference and may fix a pre-trial review." There were concerns by Judges that this should actually read may fixed a case management conference as opposed to shall. This will mean that not every Intermediate Track will have a CMC and that they will be discretionary. This is sensible.
2. Confirmation that the CPRC are looking at the consultation responses but there is no timescale on the response save that they want the changes in place by April 2024. The consultation will address:
- Recoverability of Inquest / Restoration Proceedings costs.
- Timing for admissions in Clinical Negligence claims which would otherwise be allocated to the Intermediate Track (so fixed costs would apply).
- Fixing costs in Part 8 claims.
- Approach to recoverability of advocacy fees in cases that are either settled late or vacated (abated fees in essence).
- Fixing costs in Fixed Costs Assessment proceedings. A cap of up to £500 is currently proposed with a new paper based procedure for assessment in fixed costs matters.
3. The Ministry of Justice are considering the best way forward in respect of claims against public authorities and it is suggested that there will be a rule change for such cases. The change likely concerns whether the exception for certain claims against the Police should be extended to other Public Authorities. Such reforms are likely to be tinged with political agendas. Currently the exception under Part 28 states that the following must be allocated to the Multi-Track (and thus exempt from fixed costs):
"a claim against the police which includes a claim for—
(i) an intentional or reckless tort; or
(ii) relief or a remedy in relation to a breach of the Human Rights Act 1998."
The CPRC previously intimated that they did not think the definition should be extended so it is interesting that they are revisiting this already (have considered the issue in March).
Sub £25k Clinical Negligence claim updates
There were also updates on the Department of Health's fixed costs scheme for Clinical Negligence claims with a settlement value of between £1,501 to £25,000. Chiefly the following was raised:
1. The April 2024 implementation is at serious risk. This is an issue we already know has previously been raised by the CPRC. If the April 2024 cycle is missed then the next opportunities for implementation will be October 2024 or April 2025. The CPRC have confirmed that government officials have been urged to reconsider the timetable sought. This could see the Clinical Negligence proposals delayed for at least six months.
2. The government have committed to review the Clinical Negligence scheme within 3 years of commencement.
3. The draft rules will be looked at in the forthcoming November & December meetings.
Other Matters
It is not exclusively all fixed costs. The CPRC have revealed the following:
1. There will be a consultation launched around interim remedies and security for costs. This concerns reforms to Part 25. The consultation itself is currently awaited. It is intended to shorten and simplify the Practice Direction and will include model orders for a model freezing injunction and model search order. The July minutes set out details at Item 6.
2. The Civil Justice Counsel's final report on Pre-Action Protocols is rumbling away. The CPRC are to conduct a review of the recommendations and consider these. You can read our blog on the report here.
The full October minutes are online here.
Should you want to discuss this or any other issues, please call our friendly team on 01482 534 567 or email info@carterburnett.co.uk.
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