The extension of fixed recoverable costs (FRCs) later this year will lead to “poor behaviours” by some parties and a decade of litigation to clarify how they work, the new president of the Association of Personal Injury Lawyers (APIL) has predicted.
Jonathan Scarsbrook also expressed concern that “what will and will not fall into fixed costs is ambiguous across various elements of civil litigation” – especially clinical negligence claims.
He is a partner in the Sheffield office of Irwin Mitchell and the firm’s technical director.
Taking up office at this week’s APIL annual general meeting, Mr Scarsbrook deprecated the pressures the civil justice system was under.
“Not only have we seen dozens of courts close, a shortage of judges and massive backlogs, but also constant legal reform.
“In recent years, we’ve seen the introduction of restrictive court fees, the Civil Liability Act with its tariff damages, a relentless and blinkered pursuit of fixing costs and most recently an unpicking of the QOCS rules which, in my view, go against the stated intention of those rules when they came into force as part of a package of changes.”
The draft rules for the extension of FRCs were published last month and the solicitor said “many unanswered questions” remained.
He continued: “But I would suggest that one thing is for sure – we are likely to see another decade of clarification through the appeal courts before its impact settles down.
“Similarly, I fully expect some poor behaviours to arise as a result of the rules as they are drafted, APIL will not hesitate to call these out as and when needed.”
He said it was not clear what fell within fixed costs. “Vulnerable parties may or may not be able to recover the costs they need to pursue their claims and they won’t know this until frankly it is too late.”
Mr Scarsbrook observed that first Lord Justice Jackson and then the Civil Justice Council working party set up to consider fixed costs in low-value clinical negligence claims, agreed that, as far as they could reach a consensus, it was only on the basis that fixed costs should be limited to actions worth up to £25,000.
“Now it seems, you could spend years fighting over breach of duty and/or causation only for a defence to admit these issues and suddenly you risk being allocated to the intermediate track with a clinical negligence claim worth far in excess of £25,000.”
He said APIL has written to the Ministry and Civil Procedure Rule Committee seeking clarification.
Mr Scarsbrook told members: “APIL is as relevant, as necessary, and as important as it has been at any time in its history.
“There is such a volume and scale of change facing us that we need an organisation which will continue to fight for what is right.”