The Fixed Recoverable Costs (FRC) figures will be increased from 6th April 2024 to allow for inflation. The increases are based on the Services Producer Price Index for the period between January 2023 and October 2023.
What transitional provisions govern this?
Currently, CPR 45.1(8) provides:
“A reference in any rule to an amount in a table in Practice Direction 45 is a reference to the amount applicable to a claim on the date that proceedings are issued, regardless of any subsequent amendment.”
I take this to mean that the amount of the FRC are determined by the relevant figures in Practice Direction 45 as at the date proceedings are issued.
Cook on Costs 2024 summarises this as:
“The fees set out in the rules as currently enacted will continue to apply to existing cases even if they are subsequently amended (CPR 45.1(8)).”
The latest update to the CPR amends CPR 45.1(8) and inserts a new CPR 45.1(9) from 6th April 2024. The new rules now read (with the amendments in bold):
“(8) Subject to paragraph (9), a reference in any rule to an amount in a table in Practice Direction 45 is a reference to the amount applicable to a claim on the date that proceedings are issued, regardless of any subsequent amendment.
(9) In respect of any amendment made to Table 12, Table 14 or Table 15 which comes into force on 6th April 2024, the amounts in those Tables as so amended are also applicable to any order for costs made after that date in a claim issued before that date.”
This is clumsily worded. CPR 45.1(9) appears to contradict CPR 45.1(8). If, by virtue of CPR 45.1(9), the updated amounts are recoverable regardless of when proceedings were issued, then CPR 45.1(8) is redundant. It is not the date proceedings are issued that determines the amount of the FRC but when the costs order is made.
It seems that the retention of CPR 45.1(8) is simply to preserve the old FRC where the order for costs was made pre-6th April 2024.
I believe the combination of the two sections is intended to mean:
- Where an order for costs is made before 6th April 2024, the FRC will be those in place at the time.
- Where an order for costs is made after 6th April 2024, the FRC will be those in the amended Tables.
This appears consistent with the December 2023 Minutes of the Civil Procedure Rules Committee
“A discussion as to the principle concerning application of the new, uprated, figures ensued. Two options were considered: (i) that the uprated figures apply to all claims from the April 2024 in-force date, whenever started. This means that any claim which is started before that date, but which concludes after that date, will be subject to the new figures, or (ii) that the uprated figures will apply only to claims which are issued on or after the April 2024 in-force date. MoJ consider option (i) to be the preferred approach and this was AGREED, meaning that as at April 2024 there will be one set of costs that apply, as now. However, whether this approach continues, at such time as the figures are considered for uprating again in the future, is something to be reviewed afresh at that time.”
The current FRC Tables in Practice Direction 45 are headed: “Tables of Fixed Costs (2023)”. This will be amended from 6th April 2024 to: “Tables of Fixed Costs (2024)”, with the Tables showing the increased FRC.
Would it not have been much clearer for the rules to read something like:
“CPR 45.1(8):
-
- Where an order for costs is made before 6th April 2024 a reference in any rule to an amount in a table in Practice Direction 45 is a reference to the costs set out in the Tables of Fixed Costs (2023).
- Where an order for costs is made on or after 6th April 2024 a reference in any rule to an amount in a table in Practice Direction 45 is a reference to the costs set out in the Tables of Fixed Costs (2024).”
