FIXED RECOVERABLE COSTS: LJ JACKSON’ S REPORT
Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs, July 2017
On the 31 July 2017, at a launch event at the Law Society, Lord Justice Jackson presented his Supplemental Report on Fixed Recoverable Costs (“FRC”) which contains recommendations for extending the fixed recoverable costs regime in English civil litigation. The published review will now be the subject of consultation by Government, and so the recommendations provided within the Report are proposals at this stage.
Within his Supplemental Report Lord Justice Jackson provided the results of a detailed analysis of costs budgets for a total of 223 cases (535 individual budgets which were provided to him by judges and courts for those 223 cases). He also provided a brief summary of seven seminars and various meetings with a variety of stakeholder groups.
Lord Justice Jackson said that in this review he has sought “to balance the many competing interests in terms of access to justice and proportionality of costs”. He said “I have made my recommendations and set out what I believe to be reasonable costs and proposals. It will now fall to the Government to consider this report, and no doubt subject their own proposals for reform to public consultation. This will enable the profession and all other interested parties to feed their views into the policy-making process.”
The key recommendations, among others, are:
- A grid of FRC for all fast track cases (claims up to £25,000.00 that can be tried in one day).
- A new “intermediate” track, above the fast track, for certain claims up to £100,000.00 and which can be tried in three days or less with no more than two expert witnesses giving oral evidence on each side. The new “intermediate” track will have streamlined procedures and a separate grid of FRC.
- The Civil Justice Council should, in conjunction with the Department of Health, set up a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims up to £25,000.00, together with a grid of FRC for such cases.
- A voluntary pilot of a “capped costs” regime for business and property cases up to £250,000.00 in the London Mercantile Court, with streamlined procedures and capped recoverable costs up to £80,000.00 run along similar principles to the Intellectual Property Enterprise Court.
- New measures to limit recoverable costs in judicial review claims, by extending the protective costs rules currently used in environmental cases.
Modifications to the existing Fast Track Regime and Costs Management
Lord Justice Jackson stated that it would not be appropriate in this review to tinker with the existing Fast Track FRC Regime, the costs management rules or with judicial training modules. “The focus of this report is upon whether and how to introduce FRC for cases where costs are currently at large.”
The Fast Track limit remains £25,000.00 and all Fast Track claims will be covered by Fixed Recoverable Costs.
The new grid has the same stages as the current Fast Track personal injury grid set out in CPR 45.29, but has four bands of complexity, a new concept, Band 1 being the least complex and Band 4 the most:
- Band 1: RTA non-personal injury, defended debt cases;
- Band 2: RTA personal injury (within Protocol), Holiday Sickness claims;
- Band 3: RTA personal injury (outside Protocol), Employers’ Liability accident, Public Liability, Tracked Possession claims, Housing Disrepair, other money claims;
- Band 4: Employers’ Liability Disease claims (other than Noise Induced Hearing Loss, which is set to have its own dedicated FRC scheme), any particularly complex Tracked Possession claims or Housing Disrepair claims, Property Disputes, Professional Negligence claims and other claims at the top end of the Fast Track.
The proposed recoverable costs for each band are as follows:
|£104 + 20% of damages||£988 + 17.5% of damages||£2,250 + 15% of damages + £440 per extra defendant
|£1,144 + 15% of damages over £5,000||£1,929 + 12.5% of damages over £5,000|
|Pre-issue £10,001-£25,000||£500||£2,007 + 10% of damages over £10,000||£2,600 + 10% of damages over £10,000|
|£1,850||£1,206 + 20% of damages||£2,735 + 20% of damages||£2,575 + 40% of damages + £660 per extra defendant|
|£2,200||£1,955 + 20% of damages||£3,484 + 25% of damages||£5,525 + 40% of damages + £660 per extra defendant|
|£3,250||£2,761 + 20% of damages||£4,451 + 30% of damages||£6,800 + 40% of damages + £660 per extra defendant|
|Trial advocacy fee (a. claim value up to £3,000; b. claim value £3,001 to £10,000; c. claim value £10,001 to £15,000; d. claim value £15,001 to £25,000)
The figures in all boxes are cumulative, except for the trial advocacy fees shown in the bottom line. The word “damages” is used as shorthand for debt, liquidated sum or other monetary relief.
If the claimant succeeds, the specified percentage applies to the relief recovered. If the defendant succeeds, the specified percentage applies to the claim defeated, as valued in the particulars of claim.
At the allocation stage, the court must have discretion to move individual claims between those bands having regard to the nature of the individual case. Judges should exercise this discretion sparingly and bearing in mind the proportionality factors set out in CPR rule 44.3(5). Any case of particular complexity does not belong in the Fast Track at all.
There is a special table for Noise Induced Hearing Loss (“NIHL”) claims as follows:
|Stage||NIHL claims with value less than £25,000|
|Pre-Issue||£4,000 + £500 per extra defendant (reduced by £1,000 if there is an early admission of liability or by £500 if settled before proceedings drafted)|
+ £830 uplift per extra defendant
+ £1,161 uplift per extra defendant
+ £1,537 uplift per extra defendant
Trial advocacy fee
(however a recommendation was made that Counsel’s fees and Trial Advocacy fees in NIHL cases should be the same as those proposed for “Band 4” cases and therefore the Trial Advocacy fee will generally be £1,380.00)
In addition to the above, a fee of £1,280.00 is recoverable for restoring a company to the register.
In Band 4 cases alone and in NIHL cases there will be ring-fenced fees for counsel/specialist lawyers as follows:
- Post-issue advice or conference – £1,000.00
- Settling Defence/Defence and counterclaim – £500.00
The costs of any applications properly made (e.g. because the other party is in default) should be recovered separately.
Disbursements and VAT should be recovered in addition to the sums provided within the above tables.
Military cases are excluded from the NIHL mediated agreement. Any military ELD cases assigned to the Fast Track should go into Band 4.
Non-monetary awards, such as declarations or injunctions should be treated as the equivalent of a claim for £10,000.00, with the court having power to vary that figure upwards or downwards.
Interim applications. The fixed recoverable fee for an interim injunction application will be £750.00. Interim applications in NIHL and Band 4 fast track claims will be paid at two-thirds of type A and type B costs, rather than one-half.
The Pre-action Protocols are to be amended to require parties, pre-issue, to agree the band of complexity, and that will depend upon the individual case, rather than the type of case. If the case reaches allocation stage, the Judge on Allocation will decide both the track and the band. The party will be able to challenge the band and track allocation, but if unsuccessful, will incur fixed costs of £150.00.
Escape clause. CPR rule 45.29J enables a party to escape from the fast track FRC regime in exceptional circumstances. That provision will continue to apply, but its reach will be extended following the extension of FRC across the whole of the fast track. Use of this provision will continue to be rare, because any case of exceptional complexity is unlikely to be in the fast track.
Assessment of costs. In most cases, the assessment of recoverable costs should be a straightforward exercise, not requiring judicial input. In so far as there is any dispute, the court will assess costs. If the case goes to trial, the judge will summarily assess costs at the end of the hearing. In cases which do not go to trial, there should be a shortened form of detailed assessment, of the kind described in the last sentence of Practice Direction 47, paragraph 5.7, with a provisional assessment fee cap of £500.00.
Uprating for inflation. FRC should be uprated every three years by reference to the services producer price index.
This new streamlined track will apply to most civil claims, including personal injury, but not clinical negligence, matters valued at between £25,000.00 and £100,000.00.
Proposed criteria for allocation a case to the intermediate track:
- The case is not suitable for the small claims track or the fast track.
- The claim is for debt, damages or other monetary relief, no higher than £100,000.
- The trial will not last longer than three days.
- There will be no more than two expert witnesses giving oral evidence for each party.
- The case can be justly and proportionately managed under a new expedited procedure.
- There are no wider factors, such as reputation or public importance, which make the case inappropriate for the intermediate track.
- The claim is not for mesothelioma or other asbestos related lung diseases.
- There are particular reasons to assign the case to the intermediate track.
The Intermediate Track has nine pre-trial stages and four complexity bands.
As with the existing Fast Track grid, the fixed costs are a combination of a core fee and a percentage of damages. The figures are cumulative, which means that the receiving party get the figure in the box at the stage they have reached; they do not add all of the stages up. However, for non-personal injury cases the Stage 1 costs, that is for settlement pre-issue or pre-defence investigations, is capped and not fixed.
The proposed recoverable costs for cases in the Intermediate Track are as follows:
|Stage (S)||Band 1||Band 2||Band 3||Band 4|
|S1 Pre-issue or pre-defence investigations||£1,400 + 3% of damages||£4,350 + 6% of damages||£5,550 + 6% of damages||£8,000 + 8% of damages|
|S2 Counsel/ specialist lawyer drafting statements of case and/or advising (if instructed)||£1,750.00||£1,750.00||£2,000
(3,000 if there is a counterclaim and defence to counterclaim. The rules may need to specify how costs are split between claim and counterclaim)
(£3,000 if there is a counterclaim and defence to counterclaim. The rules may need to specify how costs are split between claim and counterclaim)
|S3 Up to and including CMC||£3,500 + 10% of damages||£6,650 + 12% of damages||£7,850 + 12% of damages||£11,000 + 14% of damages|
|S4 Up to the end of disclosure and inspection||£4,000 + 12% of damages||£8,100 + 14% of damages||£9,300 + 14% of damages||£14,200 + 16% of damages|
|S5 Up to service of witness statements and expert reports||£4,500 + 12% of damages||£9,500 + 16% of damages||£10,700 + 16% of damages||£17,400 + 18% of damages|
|S6 Up to PTR, alternatively 14 days before trial||£5,100 + 15% of damages||£12,750 + 16% of damages||£13,950 + 16% of damages||£21,050 + 18% of damages|
|S7 Counsel/ specialist lawyer advising in writing or in conference (if instructed)||£1,250||£1,500||£2,000||£2,500|
|S8 Up to trial
(If the receiving party did not prepare the bundle, subtract: (a) £500 for a Band 1 case, (b) £750 for a Band 2 case, (c) £1,000 for a Band 3 case, and (d) £1,250 for a Band 4 case)
|£5,700 + 15% of damages||£15,000 + 20% of damages||£16,200 + 20% of damages||£24,700 + 22% of damages|
|S9 Attendance of solicitor (In this table “solicitor” includes a representative of the solicitor’s firm) at trial per day (To be halved if attendance is for half a day or less)||£500||£750||£1,000||£1,250|
|S10 Advocacy fee: day 1||£2,750||£3,000||£3,500||£5,000|
|s11 Advocacy fee: subsequent days
(To be halved if attendance is for half a day or less)
|S12 Hand down of judgment and consequential matters||£500||£500||£500||£500|
|S13 ADR: counsel/specialist lawyer at mediation or JSM (if instructed)||£1,200||£1,500||£1,750||£2,000|
|S14 ADR: solicitor at JSM or mediation||£1,000||£1,000||£1,000||£1,000|
|S15 Approval of settlement for child or protected party||£1,000||£1,250||£1,500||£1,750|
|Total: (a) £30,000 (b) £50,000, (c) £100,000 damages
(Assuming a one day trial in Band 1, a two day trial in Band 2, and a three day trial in Bands 3 and 4. For all bands, it is assumed that there was no counterclaim, that the receiving party prepared the trial bundles, that there was unsuccessful ADR and that there was no approval of settlement for a child or protected party)
Advocacy Fees. There are six variations of Advocacy Fees and the same four bands of complexity and these are set out at stages 10 to 15 of the table above.
Disbursements. The above table does not include disbursements. The principal disbursements will be court fees, expert fees and (where ADR takes the form of mediation) the mediator’s fee. In some cases, there will be translators and/or interpreters fees. Once the new fixed costs regime is in place, work should commence on developing fixed costs for experts.
Part 36 Offers. If the Defendant fails to beat the Claimant’s Part 36 offer, then there should be a 30% or 40% uplift on Fixed Costs, rather than an award of indemnity costs.
The reasons for replacing indemnity costs with a percentage uplift are as follows:
- Avoiding the need for a detailed assessment of costs;
- Providing certainty for litigants.
This will apply in both the Fast Track and the new Intermediate Track.
Unreasonable litigation conduct. In cases of unreasonable litigation conduct, the court should have the power either to award a percentage uplift on costs or to make an order for indemnity costs. The court will exercise that power, having regard to the seriousness of the conduct in question.
Uprating for inflation. FRC in the Intermediate Track should be adjusted for inflation every three years.
PART 8 CLAIMS
There should be FRC for applications to approve settlements for children and protected parties. If the settlement is pre-issue, the application for approval is made under CPR Part 8. If proceedings are on foot, the application for approval is made under CPR Part 23. In any Intermediate Track case, the FRC for that application should be the same, regardless whether it is made under Part 8 or Part 23.
Lord Justice Jackson also recommended that the FRC for a claimant in costs only proceedings should be £300.00 and for a defendant in such proceedings £150.00.
However, apart from the above, CPR Part 8 claims should be excluded from the proposed FRC regime.
CLINICAL NEGLIGENCE LITIGATION
The only clinical negligence claims which would fall within the Fast Track fixed costs scheme proposed in the report are those where breach and causation are admitted in the Pre-Action Protocol Letter of Response and the value of the claim is less than £25,000.00.
It was also recommended that the Civil Justice Council should in conjunction with the Department of Health set up a working party, including both claimant and defendant representatives, to develop a bespoke process for clinical negligence claims initially up to £25,000.00 together with a grid of FRC for such cases.
BUSINESS AND PROPERTY LITIGATION
Intellectual Property and Enterprise Court claims will remain subject to their own existing capped costs scheme and are not affected by this report.
There be a pilot of capped recoverable costs, in conjunction with streamlined procedures, for business and property cases with a value up to £250,000.00.
Subject to ministerial approval, it was proposed that the Capped Costs Pilot will run in the London Mercantile Court and the three specialist courts in the Manchester District Registry and Leeds District Registry, namely the Mercantile, TCC and Chancery courts.
The Capped Costs Pilot will be open to any case in the pilot courts, except those with a monetary value in excess of £250,000.00, those which will require a trial of more than two days after appropriate case management, those which involve allegations of fraud, those which are likely to require extensive disclosure or reliance upon extensive witness or expert evidence, and those which involve numerous issues and numerous parties.
The Capped Costs Pilot will be open to new cases for two years. It was recommend that this pilot (which already has the approval of the Rule Committee) should start as soon as practicable after the summer vacation.
If the pilot is successful, such a regime should be made available at the judge’s discretion for any suitable case in the Business and Property Courts or the Business and Property Lists of the County Court.
Judicial Review applications are to be subject to capped costs along the lines of environmental cases as in the Aarhus Convention.
The Aarhus Rules be adapted and extended to all Judicial Review claims.
Costs management be introduced, at the discretion of the judge, in heavy Judicial Review claims.
ONLINE SOLUTIONS COURT
The Online Solutions Court will be a new court, separate from the County Court, intended for litigants to use without recourse to legal representation. It will have a simplified procedure and a strictly limited FRC regime. It will deal with matters up to a value of £25,000.00 (including cases that currently fall within both the Small Claims Track and the Fast Track). However, Fast Track personal injury, clinical negligence, possession, intellectual property and housing disrepair claims will be excluded from its remit, as will any other case which is too complex for proper resolution within the Online Solutions Court.
In conclusion Lord Justice Jackson said that “When the reforms recommended in this report have bedded in, consideration should be given to: developing a grid of FRC for incurred costs in different categories of case, and a pre-action procedure for seeking leave to exceed the FRC in that grid; and extending the scope of the Intermediate Track and the range of FRC.”
If endorsed by the government, Lord Justice Jackson FRC reforms will have profound effects on the majority of cases in England and Wales. Whether these proposals will succeed in promoting access to justice will be determined in the coming years.
Tanya Bland, Law Costing Ltd – 31st August 2017