The CPRC held their annual open meeting online via teams on 10 May. The online format has been in place for the last few years and offers a really easy and accessible way to gain an insight into the work of the committee and to ask questions. This year’s meeting was of particular interest from a costs perspective due to the ongoing fixed costs reforms. On the agenda were both the partially implemented fixed costs extension and clinical negligence fixed costs. In addition, a public question form was held which also brought up a number of costs queries. The key take aways were as follows :
Clinical negligence FRC – The plan is that final sign off will be made at the next meeting in June and drafts will then be published as soon as practicable. There seem to still be some drafting issues, however, particularly in respect of the practice direction formatting.
Queries were raised regarding the interaction between the proposal for penalty uplifts for late documents and the existing unreasonable behaviour clause. Laurent Viac of the Department of Health and Social Care confirmed that these are intended to work side by side. There was some discussion about whether both sanctions could arise from the same behaviour. It was confirmed that the intention is no that there should be a double sanction but it is not clear in the rules.
There were issues to be ironed out around protected parties and whether the sanctions would apply. The policy intent is to include protected parties in these proposals which is different to some other FRC arrangements. This will be looked at further.
Discussions took place around how the Part 36 rules apply to this regime and whether that will be the same as other FRC. Will these follow CPR 36.22-36.24 or will they be left at large? The conclusion was that it is probably the intention to include these cases but that needs to be made clear and refer back to the correct part of CPR 36. The new regime doesn’t have stages so there was some concern that the rules don’t really fit.
Clarification was sought on the additional bolt on for an approval hearing. The rules only apply to pre issue cases but there will be a bolt on where an approval hearing is needed, it was suggested that the rules need to be clear whether this applies to protected parties and also to children.
There was also a drafting issue regarding the exclusions in section 1 as not all were cross referred. The policy intent is that Litigants in Person are not within the scope of FRC arrangements. The rationale being that it would be difficult for them to comply with the protocol.
Lord Justice Birss expressed concerns that the draft rules would not be ready for publishing by the June meeting. The issues raised would be revisited at the June meeting but it may need to go on to a future meeting.
The issues raised cast some doubt on whether the rules would stay on track for implementation in October. We have since had the announcement of the general election on 4 July which is likely to cause further delay. It is safe to say, therefore, that we now won’t see these rules come into force until April 2025 at the earliest.
Extending FRC – Following on from the general extension of fixed costs last year, an update was given regarding the proposed fixed costs determination process. These rules were discussed at the April meeting and Section 10 had been tidied up. The Court will retain a discretion to direct a detailed assessment in limited circumstances under CPR 45.65.
Public forum questions – A number of costs related questions were raised in the public forum, including :
CPR 45.50.3 – Why are stage 1 costs capped rather than fixed on IT? - Sir Jackson proposed this for non PI matters because the amount of work can vary substantially in non PI cases. Some matters may settle after just a letter of claim. This was consulted on.
Some FRC were uprated for inflation but this was not the case for all of the tables. Was this deliberate? - The tables that were uprated were Sir Jackson’s figures. Any others require separate consideration as set out in the consultation response. The application of inflation is included in the general review and there will be updates in due course.
The cap on costs of provisional assessment has been capped at £1,500 since 2012. Why hasn’t this been updated? It should be £2,000 if inflation applied - There is currently no proposal to review this cap but it was suggested that the costs sub committee should look at it.
Part 36 and FRC – There is some confusion around late acceptance but within the same stage as the Defendant gets the costs of that stage less the Claimant’s entitlement. There will be a stock take next year and this question will be added. It was suggested that the correct approach is that the Claimant gets costs up to but not including that stage, and that is the sum to be subtracted. The language of the rule is not clear.
If you have any questions regarding this summary please contact Helen Spalding here.
