Fixed recoverable costs (FRC) would also be extended to all cases on the fast-track worth up to £25,000, and a new process and FRC regime would be introduced for noise induced hearing loss cases. However, costs lawyers claim the proposals are based on insufficient evidence, while the Association of Personal Injury Lawyers (Apil) emphasised that other parts of the court process, such as court fees, are also important.
In his foreword to the consultation paper, David Gauke, Lord Chancellor, says: ‘FRC give both parties certainty as to the maximum amount they may have to pay if unsuccessful.
‘They have been a part of our justice system in most low-value personal injury claims since 2010, and have become widely accepted. It is sometimes suggested that fixed recoverable costs favour defendants at the expense of claimants. But it is generally just as much in claimants’ interests to control the costs that they might have to pay.’
The ‘Fixed recoverable costs' consultation, which opened this week, closes at one minute to midnight on 6 June 2019.
FRC were first implemented for road traffic accident cases up to £10,000 damages in 2010. In November 2016, the government and senior judges backed extending FRC, and Sir Rupert Jackson was commissioned to develop proposals. Sir Rupert published a report in 2017, advocating extending FRC.
Professor Dominic Regan of City Law School, an NLJ columnist, said: ‘I am told that the MoJ is keen to implement the proposals.
‘It would mean the end of budgeting and detailed assessment of costs. The report proposed a costs tariff about which there would be no room for argument.
‘Not every case would fall into the proposed new Intermediate Track. Complex actions would be excluded and continue as today. Expect reform probably in the autumn of 2020.’
However, the Association of Costs Lawyers (ACL) called for more data and evidence. A spokesman said: ‘The question of fixed costs ultimately comes down to the figures.
‘Do they provide genuine access to justice and allow a party to conduct litigation effectively, or do they only work for the privileged few who can afford to pay for litigation irrespective of what they recover from an opponent. The proposed figures for the fixed costs adopted by the MoJ in the consultation are nearly two years out of date and were based on just one law firm’s sample of cases, where it acted for the defendants.
‘The government needs a much more rigorous statistical base if it is to widen the use of fixed costs, and also needs to commit to regularly reviewing and updating them. This is absent from the consultation, and indeed history shows that it does not happen, to the detriment of clients, their lawyers and access to justice.
‘The fact is that nobody else supplied figures to Sir Rupert Jackson. This shows that, unless there is engagement, apathy may play a part in determining the future of funding within litigation generally. All interested parties need to recognise the importance of engaging meaningfully with this consultation, including providing data, absent which they will have to accept the outcome without complaint.’
Brett Dixon, Apil president, said: ‘Efficiencies in process and procedure are important. Fixing recoverable costs does not mean fixing actual costs. Claimants already have significant liability for court fees and just introducing fixed costs without consideration of the necessary process will add to this burden.
‘Attention must be on helping to control costs, including any recoverable costs of those representing the wrongdoer based on the work they do, rather than limiting what is recoverable from those responsible for putting the injured person back on track.’
