There is really just one item news that people are talking about. This is that we have now, finally seen the draft rules relating to the extension of fixed recoverable costs (FRC) that are due to come into effect from 1st October 2023.
In a note to the draft rules, the MOJ confirm the creation of a new Intermediate Track for some claims up to £100k. The Intermediate Track will see 4 bands with associated fees linked to complexity. Examples of cases to which this track might be appropriate are those which might last 3 days or less and those involving no more than 2 experts for each side. Judges will have a discretion to allocate to the multi-track if appropriate. The note also confirms that any proposed extension of FRC to Housing Cases has been delayed for 2 years.
The dates of implementation are not straightforward and are likely to lead to some confusion. In most cases the rules will apply to actions issued after 1st October 2023. But different rules will apply to personal injury claims. In these cases, the rules will apply to cases where the cause of action accrues after 1st October 2023. So if someone has an accident today, but proceedings are issued after 1st October 2023 then the new FRC rules will not apply.
This would be very tricky in disease cases where it is not always possible to pin down the date of accrual of the cause of action. In these cases, the rules will apply where a letter of claim has not been sent before 1st October 2023. So, we are likely to see a flurry of Letters of Claim before then! For obvious reasons we will also see lots of claim forms being issued… As previously reported, Clinical Negligence cases are excluded along with Mesothelioma and other asbestos cases. Other excluded cases include Human Rights Act matters and some Police Claims.
What about cases that are not just for damages? This was a major concern in Housing Conditions Cases. That particular concern is now one for another day. But the draft rules confirm that a notional value will be assigned where non-monetary relief is sought. This value will be linked to the relevant FRC band, so in a Band 2 case the notional value will be £10k. In cases involving damages and non-monetary relief the costs linked to the damages and the assigned value are added together. If and when the FRC rules are applied to Housing Cases, it is clear that a similar value will be applied in cases where there is a claim for Specific Performance.
There will always be cases where there is more than one claimant in connection with the same action. In most cases each will be entitled to the costs of their own claim. An exception is where two claimants are jointly entitled to the same relief under CPR 19. In such cases a single award is made. This will be very relevant – if it happens (!) – in Housing Cases involving joint tenants.
Where a defendant succeeds and also brings a successful counterclaim, 2 lots of FRC can be recovered. Separate rules will apply in personal injury claims brought under the RTA protocol.
The draft rules can found on this link –
We do not have the space in this update to set out the new tables themselves, but they can be found by following the link to the new Practice Direction 45.
These are described as ‘draft rules’. They were approved at the Civil Procedure Rule Committee’s (CPRC) meeting on 31 March 2023. We are told to expect the final version by the end of May 2023 -ahead of implementation. This is all 5 months away. We all know that those months will go over very quickly. Firms should be planning for the changes now. In particular, firms need to be reviewing those cases where a claim form should be issued, or a letter of claim sent.
Finally, we cannot sign off on an update without mentioning QOCS – what a source of litigation this has been! In Pathan v Commissioner of Police of the Metropolis  EWHC 3244 (KB), the claimant brought an action against the police for false arrest. The Claim was later amended to bring in a claim for Personal Injuries. She lost her claim. An issue then arose over whether QOCS applied and, if so, from when? At first instance the judge found that QOCS applied but only from the date of the amendment. On appeal, Bourne J found that QOCS applied to the entirety of the proceedings. QOCS is ultimately about enforcement of costs. As at the date the order for costs was made, this was a claim that ‘included a claim for damages for personal injuries’. Pursuant to 44.13(1) it was binary question. Did the claim include a claim for personal injuries or not? The answer was yes, so QOCS applied.