fixed recoverable costs

Extending Fixed Recoverable Costs

After considerable delay, the Government has provided its response to the consultation on Extending Fixed Recoverable Costs in Civil Cases. Since Lord Justice Jackson’s 2017 report on this issue and subsequent 2019 consultation paper on implementing those proposals the expansion of FRC in England and Wales has been on the agenda yet remained unresolved. The full impact is yet to be determined but it is fair to suggest that due to the higher value held by serious injury claims, they will largely be unaffected by the latest updates.

The Banding System and Extension Of FRC

FRC will be extended to all civil cases in the fast track up to a value of £25,000 in damages, with claims allocated to one of four bands of complexity. The bands will continue to fall within the 2019 consultation document requisite in terms of personal injury ‘PI’ claims. Anyone intending on challenging the banding of a claim, a costs liability of £150 will apply if that challenge is unsuccessful but the penalty in question will remain under review indefinitely. It has been confirmed that credit hire and holiday sickness claims will be covered by the bands below;

Band 1: RTA non-PI (bent metal claims) and credit hire

Band 2: RTA PI (within the Pre-Action Protocol) holiday sickness claims

Band 3: RTA PI claim (outside the Pre-Action Protocol) EL / PL accident claims

Band 4: Employers Liability disease (non-NIHL) and the most complex fast track claims

Intermediate Cases Within The Banding System

The fast track and FRC will be extended to include ‘intermediate’ cases valued between £25,000 and £100,000. Much like the expanded fast track, an unsuccessful challenge to ‘intermediate’ allocation will incur a costs liability of £300. However, a challenge to band allocation ‘without sufficient basis could amount to unreasonable behaviour, incurring further costs penalties’.

Regarding the proposed banding criteria, the four bands proposed by Lord Justice Jackson are to be retained as follows:

Band 1: The simplest claims that are just over the current fast track limit, where there is only one issue and the trial will likely take a day or less, e.g. debt claims

Band 2: Will be the ‘normal’ band for intermediate cases, with more complex claims going into Band 3

Band 3: Will be the ‘normal’ band for those complex intermediate cases

Band 4: The most complex claims, with claims such as business disputes and ELD claims where the trial is likely to last three days and there are serious issues of fact/law to be considered

The response’s crucial outcomes are as follows:

  • The Government will move forward with the proposals by working with the Civil Procedure Rule Committee but noting there is a “need to engage with the CPRC on the detail of implementation.”
  • Cases involving mesothelioma/asbestos, complex PI and professional negligence, actions against the police, child sexual abuse, and intellectual property will be excluded from the ‘intermediate’ classification.
  • The extension of fixed recoverable costs to all cases in the existing fast track up to a value of £25,000
  • The expansion of the fast track to include certain types of ‘intermediate’ civil cases valued between £25,000 to £100,000.

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