Fixed costs result delights barristers but dismays costs lawyers

Costs lawyers have lost out and barristers gained from Ministry of Justice (MoJ) changes to fixed recoverable costs.

Issuing its response last week to its July 2023 consultation on fixed recoverable costs, the MoJ said it will introduce fixed costs for assessments, aiming to implement these in October. Expressing disappointment, David Bailey-Vella, vice-chair of the Association of Costs Lawyers (ACL), said: ‘We strongly reject the notion that such work, requiring a very high level of experience and expertise, can be correctly served by a condensed assessment procedure and where the proposed costs [£500] are nominal at best.

‘We note that the MoJ announcement does not mention the level of costs and we will be asking the Civil Procedure Rule Committee to set them at a more realistic level. The ACL argues instead for an escalating and significantly higher cap on costs depending on the value of the claim.

‘While the majority of ACL members agreed with introducing fixed costs for issuing Part 8 costs-only proceedings, they again said the proposed level (£300 for a claimant and £150 for a defendant) was far too low for the work required.’

The MoJ also announced a 23.5% boost in fixed recoverable costs for advocacy fees in civil cases―the rise represents a decade of inflation calculated from 2013 to January 2023.

Initial proposals to uprate from 2016 were changed after the Bar Council and Personal Injuries Bar Association (PIBA) argued the case for backdating to 2013, when the fees were last fixed. The changes will take effect in April.

The MoJ has also agreed to ensure barristers are paid for work in cases that are vacated or settled late. In fast-track cases, where damages of up to £25,000 are sought, barristers will be able to recover 100% fees on the day of, or day before, trial and 75% two days before trial. The same rules will apply in intermediate cases, which are worth up to £100,000, except barristers can recover 75% fees up to five days before trial.

Responding, in September 2023, to the consultation on fixed recoverable costs, the Bar Council and PIBA highlighted there was no facility where cases settled or vacated shortly before trial for wronged parties to recover legal fees paid for trial preparation.

Sam Townend KC, Chair of the Bar Council, said: ‘The increase in fees and widening scope of fee recovery in cases that are vacated or settled shortly before trial is long overdue and welcome.

‘In securing these changes, we argued that barristers should be paid a reasonable fee for work done, and that the costs regime should help, not hinder, settlement and getting the backlogs in the county courts down. We continue to work to secure a commitment to automatic annual inflation-linked uprating.’

Townend said the fee increases would ‘particularly benefit more junior barristers who generally carry out this work’.