The main news of the month came as a bit of a surprise!
In September 2021 the MOJ responded to the 2017 Jackson report on fixed recoverable costs (FRC). They announced that it was the government’s intention to roll out FRC across most areas of litigation in the fast track. Lord Wolfson, then a Justice Minister said in the forward to the response –
These cases, while no doubt important to the parties themselves, are for relatively low damages and there is currently no certainty as to the costs that may be recovered or paid..
The government confirmed its intention to adopt the proposal in the Jackson report and to implement the changes in October 2022. That date was eventually put back to April 2023. There was initial scepticism among costs lawyers that this would be achieved. Previous ‘reforms’ had not been delivered on time. April 2023 then became a more likely date when the draft rules were delivered to the CPRC at the start of October 2022. Following this, we were told that we were likely to see the rules before the end of 2022.
It came as a surprise then when Lord Bellamy, on 18th November 2022 that implementation would in fact be delayed until October 2023!
‘Extending FRCs requires an extremely complex set of reforms… So I’d like to offer my sincere thanks to the CPRC, and its costs sub-committee, chaired by Mr Justice Trower, for its tireless work here. I know it hasn’t been an easy task. I know that these reforms have particular implications for housing cases, and I am grateful for the constructive input of housing providers which we continue to consider… Progress has been made, and we hope the rules will be approved in the near future. But we’re also very conscious of how important it is to get this right.’
It has been unfortunate that firms have been faced with such uncertainty. Some firms, particularly those that act for tenants in Housing Conditions Cases have had to consider the viability of continuing to do the work. Whilst they have a few months delay, the uncertainty is hardly helpful at a time a real challenge.
This announcement was followed a few days later by an announcement from the Civil Justice Council that the costs consultation was to be reopened. This is limited to the implications of the recent Court of Appeal judgment in Belsner v Cam Legal Services which we have discussed at length in this column! It is a Survey Monkey consultation and is open until 15th December 2022. Responses can be completed via this link –
Consultation on costs (re-opened) Survey (surveymonkey.co.uk)
Could this mean a fundamental re-think on civil costs? By October 2023 we will be a year closer to a General Election that could well see a change of government and possibly a rethink of government priorities.
All of this means a period of uncertainty for litigation lawyers who have had to adapt to endless changes over the last few years.