Matthew Maxwell Scott, executive director of ACSO, said that Civil Procedure Rule Committee (CPRC) minutes show a new commitment to an inflationary review of the Fixed Recoverable Costs (FRC) regime after 18 months. "If this is a policy direction to the Ministry of Justice (MoJ), this represents a major success in our campaign to create a more realistic approach to FRC.
"We've argued that inflation has been allowed to eat away at static fixed costs. Lawyers, medical experts and other have been forced to exit the market as a result of diminishing margins, with a negative impact on consumer choice and access to justice. Some costs have not changed for almost a decade, and there is no standard procedure to review the various categories of cost on a regular basis."
Looking ahead, he said that, if ministers don't want to build in an automatic uplifting mechanism, they could apply a similar measure to that in the 2018 Civil Liability Act for reviewing the discount rate. This is overseen by an expert panel which makes recommendations to the Lord Chancellor, who has a statutory duty to review and confirm changes with reasons. "
Maxwell Scott added: "That approach would provide a judicial review route if this was not done or not changed in contradiction of the evidence advanced. It would mean a transparent review process and appropriate checks and balances to avoid politicising costs issues."
Maxwell Scott also noted an apparent shift from CPRC for claimants where English is not their mother tongue. ACSO wrote to the CPRC following a recent county court judgment, which highlighted some language issues arising from Practice Direction (PD) 32 Witness Evidence, which ACSO argued was insufficiently clear in respect of using non-native languages in witness statements.
He said: "The minutes show that the CPRC has laid down a marker on its drafting, and we welcome this greater clarity for consumers and their legal representatives. The committee has acknowledged that the importance is in the fluency of the language used, not the order in which it was learned, that is relevant to witnesses giving evidence.
"We are grateful to the CPRC for taking our points on board. These are important steps forward for our members and consumers, particularly in relation to the FRC regime which is due to be implemented in October 2023, and gives our members more confidence that the judiciary is listening to consumer concerns."