Ancient Chinese curse: “May you live in interesting times”.
And so, Lord Justice Jackson has published his recommendations for extending fixed fees. The key proposals for extending fixed recoverable costs (“FRC”) to all fast-track cases, and a significant increase in fixed fees for the majority of claims with a value of up to £100,000, are no great surprise.
In more detail, he proposes:
- All recoverable costs in the fast track should be fixed, the figures should be reviewed every three years.
- A new ‘intermediate’ track with a streamlined procedure should be created for monetary relief cases above the fast track, which are of modest complexity and up to a value of £100,000.
- There should be a grid of FRC for intermediate track cases, the figures should be reviewed every three years.
- There should be FRC for (a) applications to approve settlements for children and protected parties and (b) costs only proceedings, in respect of intermediate track cases.
- Save as set out in recommendation (iv), Part 8 claims should be excluded from the proposed FRC regime.
- The Civil Justice Council should, in conjunction with the Department of Health, set up a working party to develop a bespoke process for clinical negligence claims up to £25,000, together with a grid of FRC for such cases.
- There should be a voluntary pilot of capped recoverable costs, in conjunction with streamlined procedures, for business and property cases with a value up to £250,000. If the pilot is successful, such a regime should be made available at the judge’s discretion for any suitable case in the Business and Property Courts or the Business and Property Lists of the County Court.
- For FRC cases, where a defendant fails to beat a claimant’s Part 36 offer, instead of indemnity costs applying in place of FRC, the claimant should be awarded a 30% or 40% uplift on costs. (This is what I suggested, although with a different level of uplift, 18 months ago.)
- A mediated agreement has been reached as to a new claims process for NIHL claims, with corresponding FRC, and this is endorsed.
- The Aarhus Rules should be adapted and extended to all judicial review claims.
- Costs management should be introduced, at the discretion of the judge, in ‘heavy’ judicial review claims.
Once the new reforms have bedded in, it is proposed that further consideration should be given to further extensions of fixed fees for other cases. It is proposed that this review should be after four years.
In relation to fast-track matters, they should be placed into four bands of complexity, band 1 being the least complex and band 4 the most:
- Band 1: RTA non-personal injury, defended debt cases;
- Band 2: RTA personal injury (within protocol), holiday sickness claims;
- Band 3: RTA personal injury (outside protocol), employers’ liability accident, public liability, tracked possession claims, housing disrepair, other money claims; and
- Band 4: Employers’ liability disease claims (other than noise-induced hearing loss, which is set to have its own dedicated FRC scheme), any particularly complex tracked possession claims or housing disrepair claims, property disputes, professional negligence claims and other claims at the top end of the fast-track.
The criteria to qualify for the new intermediate track would be:
- The case is not suitable for the small claims track or the fast-track;
- The claim is for debt, damages or other monetary relief, no higher than £100,000;
- If the case is managed proportionately, the trial will not last longer than three days;
- There will be no more than two expert witnesses giving oral evidence for each party;
- The case can be justly and proportionately managed under a new expedited procedure;
- There are no wider factors, such as reputation or public importance, which make the case inappropriate for the intermediate track;
- The claim is not for mesothelioma or other asbestos-related lung diseases;
- Alternatively, if the above do not apply, where there are particular reasons to assign the case to the intermediate track.
When will all this happen?
Firstly, it would need government approval and then go out for public consultation. Then the relevant Civil Procedure Rules would need to be re-written. There is no realistic prospect of this all happening by October 2017. April 2018 also looks optimistic. We are probably therefore looking at October 2018. In response to questions, Jackson indicated that the goalposts should not be moved mid-litigation. I would therefore anticipate that the trigger-date will be the date of issue (ie all claims issued on or after 1 October 2018).