Guest post by Philip Liptrot [1], a member and head of personal injury at Thompsons Solicitors
Liptrot: Simplicity must never come at the expense of fairness
When the Ministry of Justice extended fixed recoverable costs (FRC) to cases with a value of up to £100,000 in October 2023, the goal was clear: to make litigation more predictable and proportionate.
But as we highlighted in our recent consultation response to the Civil Procedure Rule Committee’s FRC interim implementation stocktake, personal injury costs are actually still unpredictable due to the imprecise definitions of the complexity banding and disproportionately low for the majority of personal injury cases.
For thousands of injured claimants, the current system risks turning access to justice into an unaffordable luxury.
Thompsons handles over 20,000 personal injury cases at any given time, with thousands now falling into the intermediate track. Our experience tells us that the framework is failing to achieve its stated objectives. Instead of promoting fairness and efficiency, the rules are creating anomalies that undermine justice.
Where the system falls short
The intermediate track, designed for claims worth between £25,000 and £100,000, often involves significant complexity – multiple medical experts, re-examinations and prolonged investigations into liability and quantum.
Yet, under the current banding system, liability is admitted in many of these cases, with band 1 costs arguably applying, which are woefully inadequate to cover the work needed to investigate quantum; or the admission comes well outside of the pre-action protocol period, meaning further liability investigations were required.
Intermediate track band 1 fixed costs in a liability admitted case worth £60,000 are less than a straightforward quantum-only fast-track case that settles for nearly a quarter of the value (£17,500). This anomaly is unfathomable and highlights the inadequacies of the system.
The consequence? Firms face mounting losses for doing essential work, so claimants pay the significant shortfall in costs from their damages or risk being left without representation. When the economics of justice don’t add up, access to justice becomes a casualty.
Unintended consequences
We are also seeing an increase in high-value pre-medical offers – tempting but dangerous for claimants who lack a clear prognosis and cannot receive considered legal advice.
Coupled with the threat of part 36 cost penalties, these offers create pressure to settle prematurely, often to the claimant’s detriment. This is not justice; it is economic coercion.
What needs to change
Our recommendations are clear:
- Exclude personal injury claims from intermediate track band 1 or significantly increase the fixed costs tariff to exceed the highest fast-track band;
- Redefine complexity bands to reflect case types, as in the fast-track;
- Remove part 36 consequences for pre-medical offers, which distort settlement dynamics; and
- Mandate early agreement on track and banding during the pre-action protocol stage.
These changes are not about protecting lawyers – they are about protecting injured people. When costs fail to reflect the work required, the system incentivises litigation over negotiation but also risks leaving claimants without representation. That is the antithesis of proportionate justice.
The bigger picture
FRC reform was intended to simplify and streamline civil justice. But simplicity must never come at the expense of fairness.
If the rules remain as they are, we risk creating a two-tier system where only the simplest cases attract representation, and those with more complex injuries are left behind.
If fixed costs are to remain for cases above the fast-track limit, the rules must deliver predictable costs that do not undermine access to justice. Because justice should never be fixed – it should be fair.