The FRC extension to cases valued up to £100,000 is due to begin on 1 October. However, the Ministry of Justice (MoJ) is still consulting on aspects such as whether costs on assessment and certain clinical negligence cases should be included, with any resulting reforms being implemented in April 2024. The Association of Costs Lawyers (ACL) warned this six-month hiatus between the reforms going live and further reforms being added would result in a basket of cases where different rules applied.
The ACL also wants clinical negligence excluded from the new rules until the Department of Health and Social Care’s separate FRC scheme for cases worth up to £25,000 has been published.
ACL chair Jack Ridgway said: ‘Irrespective of our opposition to the FRC extension on principle, it is clear that the government’s piecemeal approach to reform is only going to cause more problems than it purports to solve.
‘It fails to give the legal market sufficient time to plan, prepare and adapt to what will be a significant upheaval. The MoJ needs to fix the Solicitors Act 1974 before tipping a new load of cases into the system.’
In August, the Association of Personal Injury Lawyers (Apil) formally launched judicial review proceedings against the inclusion of clinical negligence claims.
The Bar Council was due to meet with MoJ officials this week about its concerns, namely, it is not possible to recover the advocacy fee for preparation and advice if the case settles or is vacated shortly before trial. Moreover, the fixed advocacy fee has not kept pace with inflation.
Sam Townend KC, vice chair of the Bar Council, said: ‘There are aspects of the reforms that remain unreasonable and arguably irrational.
‘The costs regime should help, not hinder, settlement and getting the backlog down.’
Townend hinted at a potential legal challenge from the Bar Council, stating his hope the government could reflect ‘so we can avoid the need for judicial review’.
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