Fixed Recoverable Costs transitional provisions

The transitional provisions concerning the new rules relating to Fixed Recoverable Costs appear to contain a fairly obvious and significant drafting error.

s1(1) of The Civil Procedure (Amendment No. 2) Rules 2023 provides:

“These Rules may be cited as the Civil Procedure (Amendment No. 2) Rules 2023 and come into force on 1st October 2023, subject to rule 2.”

s2 contains the transitional provisions:

“(1) Subject to paragraphs (2) and (3), in so far as any amendment made by these Rules applies to—

(a) allocation;

(b) assignment to a complexity band;

(c) directions in the fast track or the intermediate track; or

(d) costs,

those amendments only apply to a claim where proceedings are issued on or after 1st October 2023.

(2) The amendments referred to in paragraph (1) only apply—

(a) to a claim which includes a claim for personal injuries, other than a disease claim, where the cause of action accrues on or after 1st October 2023; or

(b) to a claim for personal injuries, which includes a disease claim, in respect of which no letter of claim has been sent before 1st October 2023.”

The new PD 45 sets out the Tables of the costs payable.

Table 14 sets out the costs payable in the new Intermediate Track.

This includes Stage 1 costs which are defined as “From pre-issue up to and including the date of service of the defence”. The recoverable costs for Complexity Band 4, for example, are: “£9,300 + an amount equivalent to 8% of the damages”. Interestingly, this amount is not fixed for non-personal injury cases but is a capped amount (as per CPR 45.50(3): “The costs to be awarded for stage S1 are subject to assessment up to a maximum of the figure shown for stage S1 in Table 14, except in a claim for personal injuries where the figure shown is fixed”).

It is therefore clear that non-personal injury cases that would fall into the Intermediate Track are intended to attract the new cap where they settle pre-issue. However, the transitional provisions expressly state that these new (costs) rules “only apply to a claim where proceedings are issued on or after 1st October 2023”. Self-evidently, a claim which settles pre-issue will never be a case where proceedings are issued on or after 1st October 2023. That is the case whether it is a claim that has been ongoing for the past 12 months or a new claim that arises 12 years from now.

Expect an urgent amendment to the rules.