Scarsbrook: We have come a long way
The Association of Personal Injury Lawyers (APIL) has withdrawn its judicial review against the government challenging aspects of last October’s extension of fixed recoverable costs (FRCs).
The action, announced last August [1], was stayed pending the outcome of a Ministry of Justice consultation on changes to the rules that was issued even before they had come into force.
The outcome of that consultation was finally published [2] at the start of last month and APIL said the “concessions” it contained were sufficient to end the proceedings.
President Jonathan Scarsbrook said the rules as originally drafted “were potentially so damaging for injured people seeking redress that we had no choice but to take action” but most of the organisation’s concerns have now been alleviated.
Amendments due to come into effect next month now mean that costs will be available for dealing with inquests and for restoring companies to the Companies Register.
There was significant concern about a lack of clarity on when FRCs might be applied to clinical negligence cases. The amended rules make it clear that they will only be subject to FRCs in the new intermediate track if liability is admitted, in full, in the defendant’s formal response to the letter of claim.
The government also confirmed that it was not its intention to reverse current case law, which allows parties to contract out of FRCs when there is a dispute in settlement agreements in favour of agreeing that costs will be subject to detailed assessment.
The fourth issue raised by APIL was solicitors having to cover part of the extra costs of acting for vulnerable parties, despite these being recoverable. The government has committed to carrying out a formal consultation by no later than October 2026.
Mr Scarsbrook said: “The timeframe for that consultation allows for the gathering of evidence, although we will be vigilant about this issue in the meantime, and alert to any need to intervene in an ongoing case if necessary and appropriate.
“We have come a long way and a lot has happened since our letter before action was sent to the government on 7 July last year.”
Others remain unhappy with the consultation outcome, with the Association of Costs Lawyers critical of the decision to press ahead with FRCs for costs assessments and for part 8 costs-only proceedings, albeit this will not happen until October to give the Civil Procedure Rule Committee time to draft the rules.
It has subsequently emerged that the committee itself was unconvinced [3] of the need for these changes and the association called on the Ministry of Justice to pause them.
Meanwhile, the government has still to formally confirm that the introduction of FRCs for clinical negligence claims – which it said last year would happen in April 2024 – is to be delayed, even though no rules have been published and the time has long passed for it to happen so soon.