Fixed Recoverable Costs - changes?
In my two previous blogs I encouraged stakeholders in civil litigation to embrace the MoJ Consultation1 considering the extension of fixed recoverable costs ("FRC") to most areas of civil litigation as an opportunity. The predictability of possible adverse costs will be a significant risk mitigation for a party considering litigation and that same predictability should encourage the legal expenses market to develop both BTE and ATE products that will support litigants. There is considerable support from the Judiciary and the Executive for the extension of FRC and in my second Blog (Fixed Recoverable Costs - effective now?) I noted that an April 2020 commencement date seemed likely. The effect of such an implementation date is that a case that may not be ready for issue until next year, or a claim arising at the tail end of a current BTE policy may well be subject to the extended FRC regime. Can parties therefore rely on the figures set out in Jackson’s Review of July 2017?
In short – yes. It is very unlikely that the MoJ will have any appetite for a substantive review of the figures. Jackson LJ is nothing if not thorough and assembled fourteen Assessors to assist in the consideration of evidence and recommendations including other members of the Judiciary, practitioners and academics. Included in the latter category is Professor Paul Fenn who advised not only on the 2009 review of Civil Litigation Costs but was the
The SPPI was used to update Fast Track FRC figures
expert advisor to the mediations that set the success fees for RTA and EL cases in the early 2000s. These experts, many of whom can point to successful previous advice on civil cost reform, considered considerable volumes of data and information detailed in the Appendices to the Review. It is therefore very unlikely that, save for some specific responses (such as whether there might be a merging of two bands where the figures are very close) there is likely to be any adjustment. There is an argument that there could be a small inflationary adjustment (see right for ONS Table of the Services Producer Price Index) but other than that there is likely to be no substantive change.
Thus when planning for commencement, advising clients or considering the LEI premiums to charge the starting point should be the figures within Jackson’s 2017 Review of Civil Litigation Costs.