Legal Cost Specialists

Legal Costs Blog

Law Society CFA unenforceable?

Posted by on 21st March 2022 in CFAs | 1 comment

Recent posts have looked at some of the drafting problems with the Law Society’s (old) model conditional fee agreement.

I am grateful to loyal reader of the Legal Costs Blog, Jacques Hughes, for pointing out the rather more significant problem in that all these agreements are probably unenforceable.

s58(1) of the Courts and Legal Services Act 1990 provides that:

“A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable.”

By virtue of s58(4A) of the Courts and Legal Services Act 1990, additional conditions are applicable where the CFA includes a success fee and relates to proceedings of a description specified by order made by the Lord Chancellor for the purposes of the subsection.

The Conditional Fee Agreements Order 2013 specifies personal injury claims as being subject to those additional conditions.

s58(4B) of the Courts and Legal Services Act 1990 sets out those additional conditions:

“(a) the agreement must provide that the success fee is subject to a maximum limit,

(b) the maximum limit must be expressed as a percentage of the descriptions of damages awarded in the proceedings that are specified in the agreement,

(c) that percentage must not exceed the percentage specified by order made by the Lord Chancellor in relation to the proceedings or calculated in a manner so specified, and

(d) those descriptions of damages may only include descriptions of damages specified by order made by the Lord Chancellor in relation to the proceedings.”

The Conditional Fee Agreements Order 2013 sets out the description of damages at s5(2):

“(a) general damages for pain, suffering, and loss of amenity; and

(b) damages for pecuniary loss, other than future pecuniary loss,

net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions.”

s5(1) of the Conditional Fee Agreements Order 2013 sets out maximum percentage:

“(a) in proceedings at first instance, 25%; and

(b) in all other proceedings, 100%.”

Personal injury solicitors should be familiar with all of the above. In simple terms, where there is a personal injury claim, the maximum success that may be applied to a CFA is capped by reference to certain elements of the damages awarded (basically general damages and past losses).  That cap is 25% of the relevant damages for claims at first instance.

So, how does the old model Law Society CFA deal with this:

Cap on the amount of Success Fee which you will pay us in the event of Success in proceedings at first instance

There is a maximum limit on the amount of the success fee which we can recover from you.

That maximum limit is 25% of the total amount of any:

(i)            general damages for pain suffering and loss of amenity; and

(ii)           damages for pecuniary loss, other than future pecuniary loss;

which are awarded to you in the proceedings covered by this agreement. The maximum limit is applicable to these damages net of any sums recoverable by the Compensation Recovery Unit of the Department of Work and Pensions. The maximum limit is inclusive of any VAT which is chargeable.

[The maximum limit includes any success fee payable to a barrister who has a CFA with us.]

However, this maximum limit applies only to a success fee for proceedings at first instance and not to a success fee on other proceedings (such as, for example, an appeal against a final judgment or order).”

In relation to proceedings at first instance, there is no problem with the wording. It clearly sets out the cap and that cap is consistent with the maximum percentage allowed by the Conditional Fee Agreements Order 2013.

Where does the problem arise then? This is in relation to “other proceedings”, most likely an appeal.

The model agreement expressly states that it covers:

“• Any appeal by your opponent.

• Any appeal you make against an interim order or an assessment of costs.”

It is therefore clear that the model CFA covers certain potential appeals (ie matters that will not be proceedings at first instance).

The wording of the model CFA simply states that the maximum limit (ie the 25% cap) “applies only to a success fee for proceedings at first instance and not to a success fee on other proceedings”. No alternative cap is provided for in the event the matter proceeds to an appeal covered by the CFA.

However, it is clear beyond doubt that the Conditional Fee Agreements Order 2013 does not simply set a cap in relation to proceedings at first instance.  It provides for a further cap of 100% “in all other proceedings”. Unfortunately, this further cap is completely omitted from the Law Society model CFA.

Does this matter if the claim does not proceed past proceedings at first instance? Most definitely. It was established long ago, back in the days of the Costs Wars, that the enforceability of a CFA was to be determined at the time it was entered into (see Garrett v Halton Borough Council [2006] EWCA Civ 1017).  The fact that the case in question may not have proceeded to an appeal does not alter the non-compliance with the relevant provision in the Conditional Fee Agreements Order 2013.

It is difficult to understand how this drafting error was originally made. I speculate, but it can be no more than that, that the drafter/s confused two different 100% caps.  The model agreement correctly set out the maximum amount of the success fee as a percentage of the basic charges:

“The Success Fee cannot be more than 100% of the basic charges in total.”

Did the drafter/s confuse that maximum amount (governed s58(4)(c) of the Courts and Legal Services Act 1990 and s3 of the Conditional Fee Agreements Order 2013) with the 100% cap on the amount of the success fee (calculated by reference to damages) which can be charged under the Conditional Fee Agreements Order 2013?  Did the drafter/s believe that specifying the 100% cap on the maximum amount of the success fee as a percentage of the basic charges amounted to compliance (as required by s5(1) of the Conditional Fee Agreements Order 2013) to specify the 100% cap on the success fee as a percentage of the damages for the purposes of “other proceedings”?

So far as I am aware, there is no reported (or even anecdotal) case where a challenge has been made to the enforceability of the Law Society model CFA agreement based on this potential challenge. This is surprising given how long the Conditional Fee Agreements Order 2013 has been in place.

I would estimate that approximately 80% of CFAs in personal injury matters are based on the Law Society model agreement or a slight variation thereof. In relation to the remaining 20%, I suspect that 90% of those have simply lifted the offending wording from the Law Society CFA and incorporated them into those agreements.

Remember, you read it here first.

Personal Injury Costs 2022 webinar

Posted by on 17th March 2022 in Legal Costs | 0 comments

Excellent Personal Injury Costs 2022 webinar from Andrew Hogan and Craig Ralph now available.

 

Recovering shortfall in costs from client’s damages

Posted by on 14th March 2022 in detailed assessment | 0 comments

During the rough-and-tumble of a typical detailed assessment hearing, where the judge will be making multiple ex tempore decisions, it is routine to hear criticisms of the amount of time claimed by the receiving party and/or criticisms of certain items that have been included within a bill of costs. It is much less usual to see such criticisms make their way into a reserved/reported judgment as such decisions are usually dealing with technical points of principle.

The reserved judgement of Senior Master Gordon-Saker in ST v ZY [2022] EWHC B5 (Costs) will therefore make awkward reading for Irwin Mitchell (“IM”), the solicitors concerned. The judgement was handed down, in part, expressly for release to BAILII (ie for wider reading).

The Court was dealing with a personal injury case where the successful claimant’s solicitors were seeking to recover a costs shortfall from the claimant’s damages.

The very fact that seeking such recovery was viewed as being unusual was highlighted:

“In the years since the 2012 Act came into force, some solicitors have sought to recover their success fees from their clients when acting for children or protected parties. In the Costs Office I am aware of only two firms of solicitors who, in such cases, regularly seek to recover the fees which exceed the basic charges recovered between the parties.”

In relation to the instructions that had been given to IM’s counsel in advance of the detailed assessment hearing:

“It was … unfortunate that on the day that the bill was listed for detailed assessment [IM’s counsel] told me that he had not been provided with the full set of IM’s papers in advance of the hearing, although the court had been provided with them electronically. On the previous two occasions when I have listed IM’s bills for detailed assessment under r.46.4(2), counsel had not been provided with the full set of papers. To misquote Lady Bracknell, once would have been a misfortune. Thrice begins to look like a policy.”

In terms of some of the items claimed within the bill, where any shortfall in recovery was being sought from the client:

“Quite why it would be reasonable to charge for even a junior fee earner to spend 48 minutes researching the APIL Guide to Fatal Accidents to see who can bring a claim for loss of dependency and then spend 30 minutes considering an internal guidance note on fatal claims by the costs management team is unclear.”

IM had been acting in relation to claims brought on behalf of various individuals in addition to the claimant (“C”). In terms of whether the bill had properly excluded costs relating to those other than the claimant:

“No particular thought would appear to have been taken to separate out the costs for which C is not liable.”

In relation to one of the main issues the Court was considering, namely whether costs in excess of the last approved cost budget were “unusual in amount”:

“I should add that I think it very surprising that a solicitor would not tell their client that the budget had been exceeded and that the costs in excess of the budget would not be recoverable. … Instead IM appear to have been happy simply to ignore the budget and incur costs which they would or should have known would not be recovered from the Defendant.”

Ouch.

Seeking costs from client in excess of approved budget – ST v ZY

Posted by on 7th March 2022 in detailed assessment | 0 comments

Given the Court of Appeal recently adjourned the case of CAM Legal v Belsner, we will have to wait some time for guidance from the higher courts on the issue of informed consent when deductions are made from damages in personal injury cases.

However, that has not stopped important developments elsewhere on the same issue and particularly where costs are incurred in excess of an approved costs budget.

CPR 46.9(3) incorporates an element of informed consent where solicitor/own client costs are being assessed:

“Subject to paragraph (2), costs are to be assessed on the indemnity basis but are to be presumed –

(a) to have been reasonably incurred if they were incurred with the express or implied approval of the client;

(b) to be reasonable in amount if their amount was expressly or impliedly approved by the client;

(c) to have been unreasonably incurred if –

(i) they are of an unusual nature or amount; and

(ii) the solicitor did not tell the client that as a result the costs might not be recovered from the other party.”

In ST v ZY [2022] EWHC B5 (Costs), the Court was dealing with a personal injury case where the successful claimant’s solicitors were seeking to recover a costs shortfall from the claimant’s damages.

At the outset, and during the claim, the claimant had been advised that there would be a shortfall in costs recovery. The claimant had also been given an estimate of the likely level of that shortfall. At the conclusion of the matter, that estimate proved to be broadly accurate. At this stage, it might be thought that the claimant must be taken to have given, at least implied, approval for those costs that were in excess of that which might be recovered from the other party.

The problem for the solicitors was that much of the shortfall was as a consequence of the costs incurred by the solicitors being significantly in excess of the last approved costs budget in respect of a number of phases. During the inter partes detailed assessment, the solicitors were unable to put forward a “good reason” to depart upwards from the last approved budget. This, in part, explained a large proportion of the shortfall in recovery from the other side.

The question was, in the eyes of Senior Costs Judge Master Gordon-Saker, had the claimant been properly advised that costs in excess of the approved costs budget were being incurred and that these were therefore unlikely to be recoverable from the other side? If not, were these costs “unusual” for the purposes of CPR 46.9(3)(c)? In the view of the Master:

“[The solicitors] submitted that ‘unusual’ should be read as being between solicitor and client. However that seems to me to ignore the purpose of the rule. To avoid the presumption the solicitor is required to explain to the client that the costs may not be recovered because they were unusual. ‘Unusual’ must therefore be read in the context of a between the parties assessment. …

Were the excess costs unusual in amount? In my judgment they were. In approving the budget at £53,401.72, rather than at £147,981.50, the court arrived at the figures which it considered would be reasonable and proportionate to take the case to trial. In respect of issue/statement of case, that reasonable and proportionate figure was exceeded by over 100 per cent. In respect of witness statements, the reasonable and proportionate figure was exceeded by over 400 per cent. In respect of ADR/settlement, the reasonable and proportionate figure was exceeded by over 150 per cent. These figures are so far over what they should be, and what the court has already decided that they should be, that they must be unusual in amount.”

The crucial problem for the solicitors was:

“I have found nothing to suggest that [the claimant] was told about the budget or about the effect of the budget.

To avoid the presumption applied by CPR 46.9(3)(c), the solicitor must tell the client that as a result the costs might not be recovered from the other party. That must mean as a result of their unusual nature or amount. Telling the client that some costs might not be recovered from the other side is not sufficient. [The claimant] should have been told that the budget was being exceeded by a wide margin and that, as a result, those costs might not (and, indeed, almost certainly would not) be recovered from the other side.

Accordingly, in my judgment, the costs in excess of the budget and in excess of the caps imposed by CPR 3.15(5) are to be presumed to have been unreasonably incurred.

I should add that I think it very surprising that a solicitor would not tell their client that the budget had been exceeded and that the costs in excess of the budget would not be recoverable.”

Conditional fee agreements – cap on success fee where terminated early

Posted by on 24th February 2022 in CFAs | 0 comments

Recent posts have looked at the problems that arise when a Law Society model CFA is terminated early.

A linked problem (though not specific to the Law Society agreement) is where the client moves to new solicitors part way through the claim.

A combination of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Conditional Fee Agreements Order 2013 means that where “a conditional fee agreement” in a personal injury case provides for a success fee, that success fee must not exceed 25% of the damages (limited to general damages and past pecuniary loss).  It is important to note that the rule relates to an individual (“a”) CFA.

The rule is clearly designed to protect the client from having too much of their damages taken by way of the success fee.

However, if a client moves firm part way through the case, and both firms act under their own CFAs with success fees, there appears to be nothing to prevent each firm from recovering up to 25% of the relevant damages.  It is therefore crucial that a new firm of solicitors taking over a case from another firm fully advises the client that they are losing the benefit of the cap by moving firm.  Although the exact scope of a solicitor’s duties when advising a client before a CFA is entered into currently remains a grey area, the courts are likely to look to see whether there has been informed consent in this situation.

This problem of the 25% cap applying to the individual CFA, rather than the overall costs of the client, is not unique to this situation.  It would equally apply where a solicitor enters into a CFA with a success fee and counsel is then instructed to act under a separate CFA with a success fee.  I understand that, in reality, counsel is often expected to forgo any success fee in this situation.

It does raise the interesting prospect that a solicitor could choose to act under more than one CFA with the client to avoid the CFA cap.  For example, CFA 1 covers work up until track allocation and CFA 2 covers work thereafter.  There appears to be nothing within the legislation/statutory instrument to prevent the 25% cap being recovered under each CFA.  Needless to say, you are likely to be in a world of trouble if you try this without the client giving informed consent.  However, in a risky case it may be perfectly justifiable if the single 25% cap is inadequate to reflect the risk to the solicitor.

Law Society CFA – Early termination

Posted by on 21st February 2022 in CFAs | 1 comment

A recent post looked at one the drafting problems with the Law Society model conditional fee agreement that arises where the agreement is ended before the successful conclusion of the claim.

The relevant clause was:

“You can end the agreement at any time. Unless you have a right to cancel this agreement under Schedule 3 and do so within the 14 day time limit we then have the right to decide whether you must:

    • pay our basic charges and our expenses and disbursements including barristers’ fees but not the success fee when we ask for them; or
    • pay our basic charges, and our expenses and disbursements including barristers’ fees and success fees if you go on to win your claim for damages”

A further problem arises when the solicitor chooses to insert the following optional clause in the Law Society model CFA into Schedule 2:

“Overall cap on your liability for costs

We will limit the total amount of charges, success fees, expenses and disbursements (inclusive of VAT) payable by you (net of any contribution to your costs paid by your opponent) to a maximum of [25%] of the damages you receive.”

It is not clear how this is meant to apply in relation to early termination if the solicitor elects to be paid their basic charges immediately.  Unless and until the claim settles, the level of damages and the level of recovered costs from the opponent will remain unknown. As such, it would not be possible to determine what the maximum amount payable would be.

The only way for this to logically work would be to disapply the cap in Schedule 2 if the solicitors opt to seek payment of their basic charges immediately, but Schedule 2 does not state that the cap is disapplied in this situation.

It is certainly possible to envisage situations whereby the solicitor would be better off taking their basic charges immediately, assuming there is no applicable cap in that case, as opposed to waiting until the conclusion of the matter (and the conclusion of any subsequent settlement of costs with the other side) where the recoverable basic charges and success fee would be subject to the cap.

It is not surprising that an increasing amount of my time is taken up advising on and drafting CFAs for solicitors.

 

 

Law Society Model CFA

Posted by on 14th February 2022 in Uncategorised | 1 comment

The Law Society model conditional fee agreement is not very well drafted.  (Cue gasps of astonishment.)

Although, when I say Law Society model CFA, currently no such thing exists.  The last model agreement was updated in 2014 and, even then, appears to have been a temporary job as the header to the document stated:

“This model agreement is in the process of being amended to take make it fully compliant with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. You should refer to those regulations before using this model.”

The agreement has now been removed from the Law Society website (apparently in July 2021) with a message stating:

“The Law Society’s model conditional fee agreement (CFA) is in the process of being reviewed, and so is not currently published.

Solicitors using an old version should be aware that it does not reflect all of the recent changes to legislation, or case law, that may affect the viability of CFAs.

The model CFA and guidance were last updated in 2014. The model is intended for use in personal injury and clinical negligence claims.

We will issue a revised version in due course, taking into account ongoing judgments from 2021.

Thank you for your patience in the meantime.”

Ignoring any issues with the previous Law Society model CFA not being up to date with the law (and one does wonder how well it reflects on the profession that the representative body for solicitors is unable to keep up to date with developments in the law), it contains basic drafting errors.

The body of the agreement states:

“Otherwise if you end this agreement before you win or lose, you pay are basic charges and expenses and disbursements. If you go on to win you also pay a success fee.”

This is written in commendably clear language that the average lay person should be able to understand.  If the client ends the agreement early, the basic charges, expenses and disbursements are automatically payable (win or lose) at the point of termination.  If the client then goes on to win the claim, they will be liable to pay the success fee in addition.

However, when you turn to the Law Society Conditions, that are attached to and form part of the model CFA, these state, under “paying us if you end this agreement”:

“You can end the agreement at any time. Unless you have a right to cancel this agreement under Schedule 3 and do so within the 14 day time limit we then have the right to decide whether you must:

    • pay our basic charges and our expenses and disbursements including barristers’ fees but not the success fee when we ask for them; or
    • pay our basic charges, and our expenses and disbursements including barristers’ fees and success fees if you go on to win your claim for damages”

Therefore, contrary to what is stated earlier in the agreement, the client is not automatically liable to pay basic charges and expenses and disbursements upon termination.  At the point of termination, the solicitor is meant to elect one of the two options:

    • Immediately get paid their basic charges, expenses and disbursements. If this option is chosen, the solicitor forgoes their right to recover a success fee if the claim is eventually won; or
    • Wait until the conclusion of the matter and if the client wins the claim to then be paid their basic charges, expenses, disbursements and the success fee. It is implicit in this that if the case is lost, the solicitor is not entitled to be paid such costs (although is possibly entitled to be paid expenses and disbursements depending on how the agreement is drafted elsewhere).

Looking back on a very old version of the Law Society model CFA (from Cook on Costs 2000), the wording of the corresponding provisions are almost identical.

How does such a basic drafting error occur and why was it not spotted/corrected for over 20 years?

Electronic bill of costs

Posted by on 17th January 2022 in bills of costs | 1 comment

The “new” electronic bill of costs has now been around long enough for a clear view to be formed as to its advantages and disadvantages.

However, as a starting point to judging its success, it is legitimate to look back at what Lord Justice Jackson stated the express aim of a new electronic bill should be in his Final Report:

“There are three requirements which have to be [emphasis added] satisfied:

(i) The bill must provide more transparent explanation than is currently provided, about what work was done in the various time periods and why.

(ii) The bill must provide a user-friendly synopsis of the work done, how long it took and why. This is in contrast to bills in the present format, which are turgid to read and present no clear overall picture.

(iii) The bill must be inexpensive to prepare. This is in contrast to the present bills, which typically cost many thousands of pounds to assemble.”

Scoring these in turn:

(i) 3/10 – The majority of electronic bills do provide more detail as to what and when work was done (in part because many bills now list every single letter, email and telephone call as individual items, often with a brief description of the purpose of the communication). There is nothing within the new electronic bill that assists as to the “why”.

(ii) 2/10 – The electronic bills do provide various summaries (eg by phase, task, activity). Again, this does nothing to assist in the “why”.  Further, other than grouping work by phase, there is nothing within the new format that assists in giving an overall picture.  Indeed, the fact that even a relatively large traditional bill might have run to one hundred items plus schedules, whereas a similar electronic bill might run to thousands of entries, tends to obscure rather than throw greater light on the overall picture.

(iii) 0/10 – No comment needed.

Counsel’s brief fee where case settles early – Hankin v Barrington

Posted by on 12th January 2022 in disbursements | 1 comment

There used to be a very old rule whereby counsel was entitled to their full brief fee once the brief had been delivered even if the case settled before the date fixed for the hearing. This is no longer the case. A recent example of the correct approach is to be found in the decision of Deputy Master Campbell in Hankin v Barrington & Ors [2021] EWHC B1 (Costs). Where a case settled early there would “need to be a re-negotiation between counsel’s clerk and instructing solicitors”.

A brief fee of £125,000 plus VAT has been agreed by the Claimant’s solicitors with their Leading Counsel in respect of a matter listed for a 13 day trial. The claim concerned a severe head injury pleaded at over £3 million with liability and quantum in dispute.

The trial was listed to commence on 15 March 2021. The brief was delivered to Leading Counsel on 22 February 2021. The claim settled by way of mediation on 24 February 2021 (although the Consent Order was not approved until 2 March 2021).

£15,000, of the £125,000, was attributed to Leading Counsel’s fees for attending the mediation. This amount was not disputed by the Defendant paying party. The balance of £110,000 was claimed in full as the brief fee.

The matter had been subject to a cost management order. At the detailed assessment, the Claimant conceded (in what was described by the Deputy Master as a “sensible concession”) that the fact of the matter had settled pre-trial amounted to a “good reason” under CPR 3.18(b) to depart downwards from the last approved budget.

The brief fee had been calculated, at least in part, on Leading Counsel’s hourly rate of £550. The Deputy Master was of the view that such a rate was “higher than that allowed for these types of catastrophic injury cases which come before the Costs Judges” and was “too high”. The deputy Master decided that the starting point as to what would have been a reasonable brief fee was £75,000.

The Deputy Master then decided what further reduction should be made to that amount to reflect the fact that the trial did not take place. The Deputy Master was of the view that it was unlikely that much time at all would have been spent on trial preparation prior to the matter settling given Leading Counsel would have been getting ready for the mediation. The correct starting point, in the Deputy Master’s view, was that the brief fee should be reduced by 50% to £37,500 plus VAT to reflect the early settlement.

A further issue arose in that there was evidence before the Court that Leading Counsel had been able to undertake some alternative paid work for the period that had been booked for the trial. The evidence was that the earnings for this period amounted to £11,000. The Deputy Master approached this issue on the basis that much of this work would represent Leading Counsel properly attempting to “mitigate his loss” for the fact that the trial had not proceeded. He attributed £10,000 of these earnings to such “mitigation”. He therefore deducted this further figure of £10,000 from the £37,500 to leave a total payable by the Defendant of £27,500 plus VAT.

Extension of fixed costs

Posted by on 6th January 2022 in fixed fees | 0 comments

The Ministry of Justice (MoJ) recently announced that it intends the extension of fixed recoverable costs in most money cases worth up to £100,000 to come into force from October 2022.

This is, of course, subject to the Civil Procedure Rule Committee redrafting CPR 45 in time.  This itself is a significant undertaking, particularly as “the policy view is to commence a complete re-draft of [it] to simplify and streamline the rules”.

As with the implementation of other fixed costs regimes, the new rules will apply to those cases where the accident or cause of action arises after the implementation date, or in disease and equivalent cases where no letter of claim has been issued before the implementation date.  So, this will not be retrospective.

The fast-track will be expanded to include “intermediate” money claims valued between £25,000 to £100,000 where the trial should not last longer than three days with no more than two expert witnesses giving oral evidence for each party.

Mesothelioma/asbestos, complex personal injury and professional negligence, actions against the police, child sexual abuse, and intellectual property will all be excluded from intermediate cases.

It is easy to make too much, or too little, of these changes.

The greatest impact is likely to be felt outside the world of personal injury.  A very large number of consumer contractual disputes, commercial claims and more routine professional negligence claims will become subject to fixed fees.  There are two possible ways this may impact the market.

Firstly, and no doubt this is the hope of the MoJ, solicitors may increasingly offer their clients fixed fee arrangements broadly in line with the fixed recoverable costs.  This should lead to firms streamlining their processes and changing their approach to litigation.  (There is little point spending two hours drafting a clever letter arguing with the other side over a procedural point if you will not get paid any extra for it.)  This may mean less profit per case.  On the other hand, if the cost of litigation becomes cheaper and more predictable, this may lead to an increase in the number of claims being brought.  This may mean more work, not less.

On the other hand, if solicitors remain wedded to the hourly rate model, and successful parties are only able to recover a small amount of the costs they have incurred, this may see case numbers slump and an access to justice crisis emerging.

In terms of personal injury work, the impact is likely to be less dramatic.  Firstly, as explained by Professor Dominic Regan:

“A claimant hurt in a September 2022 accident would have three years to bring a claim.  If they only issued in 2025, the case might not be resolved until 2027.  They would be entitled to recover costs at large (unfixed) five years after the new measures took effect.”

The second reason why the impact may be more muted is that the new “intermediate” category of case will be restricted to claims with no more than two expert witnesses giving oral evidence for each party.  Once the new rules come into force, expect an immediate increase in the number of medical experts being instructed per claim by claimants.  There will always be something that justifies further investigation.  It will be interesting to see how defendants react.  The decision as to track allocation, which will determine whether fixed fees apply, will presumably continue to be made after Directions Questionnaires are exchanged.  Will there be a much greater willingness on the part of defendants to agree claimants’ experts’ reports (or, at least, not seek their own evidence in the same field) to reduce the need for more than two experts to give oral evidence?