Now we have sight of the Statutory Instrument for the amended Civil Procedure Rules (CPR) ahead of the extension of Fixed Recoverable Costs (FRC) on 1 October 2023, we wanted to provide an update on the steps ACSO are taking to challenge lawmakers constructively on the areas of concerns our Litigation Reform Group has identified.
As we are coming to understand the rules in greater detail, the following elements of FRC have become our focus:
- the provisions that assist with the transition to extended FRC and the intermediate track, and any identified areas of friction;
- the commerciality of the new regime and track, and any identified areas of concern that could result in consumer detriment; and
- the provisions regarding vulnerability, and the extent to which the provisions limit access to justice for any vulnerable consumer.
We continue to engage with the Civil Procedure Rule Committee (CPRC), the Ministry of Justice (MoJ), the Civil Justice Council (CJC) and all other relevant bodies seeking clarity where the provisions are vague, and amendment where there is a lacuna or potentially unintended consequence.
In relation to commerciality, while we are pleased to see that the costs matrix for the non-portal fast track and proposed intermediate track have been adjusted for inflation, we have ongoing concerns that the MoJ portal costs (for the relevant cases in the fast track) and RTA disbursements have not been adjusted. In relation to the latter, a consultation was released on 18 July 2023 which includes consideration for the way some disbursements should be adjusted.
We have made our own calculations using the Services Producer Price Index (SPPI), the index used to uprate the FRC matrix for the intermediate track. Stages 1 and 2 of the RTA protocol MoJ Portal costs should be £244 and £365 or £731 (as opposed to £200, £300 and £600), and in EL/PL cases the same figures should now be £365, £731 or £1,584 (as opposed to £300, £600 or £1,300).
For disbursements, we largely agree that the uprated FRC noted in the above consultation are accurate for the application of the SPPI inflation rate. We consider an Orthopaedic Surgeon’s report should be £503.03 (as opposed to £420), the report of a GP should be £215.59 (instead of £180) and for an A&E specialist, FRC should be £431.17 (instead of £360).
As we have maintained in our frequent engagement with the government, static FRC causes a detrimental effect on all market stakeholders over time, including the consumer, their representatives, medical agencies and experts. We continue to call for rectification of this issue that has been the subject of neglect for almost a decade. Our full calculations are available upon request.
The June 2023 CPRC minutes suggest that the feedback stakeholders, including ACSO, have provided is being listened to and some of those identified issues are being addressed. However, we also note some unspecified matters necessitate further consultation.
On the lead up to the October implementation, ACSO will:
- Draft our response to the consultation on medical reporting and disbursements (which closes on 10 October);
- Continue to engage with our working groups to collate thoughts and feedback as the complicated costs rules continue to be analysed and better understood; and
- Continue to engage with external stakeholders such as the MoJ, CPRC, OPRC and other relevant bodies to help identify issues and suggest solutions on the matters of transition, commerciality and vulnerability.
The recoverability of fair and proportionate legal costs has and will continue to underpin our civil justice system and it will therefore remain a priority for ACSO throughout 2023.
Please contact our legal policy advisor Daniel Bates at daniel.bates@acso.org.uk should you wish to find out more details or contribute to any of the work discussed.