Birss: Progress on budgeting recommendations
The extension of fixed recoverable costs (FRCs) to low-value clinical negligence cases seems likely to be delayed further after it emerged the rule committee did not discuss them last month.
Minutes from the committee’s meeting in May stated that, if the new rules were not approved in June, they would not be included in this summer’s update, coming into force in October – which is when the FRC scheme, already delayed from April, is due to come into force.
The new government’s position on the extension – which applies to claims worth between £1,501 and £25,000 that settle pre-issue – is also not known at the moment.
The minutes of both the May and June meetings of the Civil Procedure Rule Committee were published last week after the election.
The May minutes recorded that the deputy head of civil justice, Lord Justice Birss, and Senior Master Cook said the intention was to publish the draft pre-action protocol “as soon as practicable, with the aim of helping users prepare for implementation”.
However, “some concerns were raised regarding the practical aspects of achieving this in the time envisaged” and, by the end of the discussion, it was agreed that the draft protocol was “not fit for publication” in its current form.
The minutes also said the “potential risk of missing the deadlines for an October 2024 in-force… would arise if the amendments cannot be finalised and agreed at the June 2024 meeting” – in which case, the next mainstream CPR update would be for rules coming into force in April 2025.
The June minutes make no mention at all of the new rules, indicating that they will not make the deadline for the October update – although the rule committee does usually have a July meeting too.
There has been no official confirmation of this as yet but that may come as no surprise: the Department of Health & Social Care only formally confirmed the delay to October in May, a month after the rules were meant to be implemented.
Meanwhile, the June minutes revealed that the committee reviewed a draft pilot practice direction which makes costs budgeting the default in claims worth more than £10m, as well as the new costs budgeting ‘light’ procedure.
It is the first sign of the changes recommended by the May 2023 Civil Justice Council’s costs review, chaired by Birss LJ and accepted by the Master of the Rolls, Sir Geoffrey Vos.
The review’s “fundamental recommendation” was that budgeting should be retained alongside “acceptance of the hypothesis that ‘one size does not necessarily fit all’”.
It continued: “We suggest that it should be possible to permit a more tailored approach to costs management, to suit different work types and/or venues where the litigation is conducted.”
This would require further input and some piloting to flesh out, and the working party “tentatively” identified three areas where costs management could work differently from the norm and each other: personal injury and clinical negligence work (covered by qualified one-way costs shifting (QOCS)), claims progressing in the Business and Property Courts (BPCs), and “other specialist work”.
It also recommended piloting a “costs budget light” regime for part 7 cases in the multi-track valued up to £1m – these cases were “at greatest risk” of incurring disproportionate cost but are not so high in value that they needed full-scale budgeting – and a “lighter touch” approach for BPC cases worth more than £1m.
His Honour Judge Bird explained to the June meeting that a sub-committee has prepared a new draft practice direction that included claims with a value of over £10m, unless the court decided to exclude them, the reverse of the current position.
The draft provided that litigants in person and claims brought by or on behalf of children would be excluded unless the court otherwise ordered.
The minutes said the PD provided for five categories of case, each limited in certain courts and court centres: BPC claims worth £1m or more; BPC claims worth less than £1m; QOCS claims; non-QOCS claims; and “certain other” non-BPC claims.
A new precedent costs form is also being proposed, modelled on the existing Precedent H.
The minutes said: “A discussion followed, which raised a number of points regarding scope and application, particularly for non-QOCS matters and evaluation.
“It was agreed in principle: to separate out the categories currently incorporated into the one draft PD and cast a collection of draft PDs in response to the feedback and further discussion out-of committee; implementation dates do not need to be the same for each PD.”
The sub-committee – whose other members are District Judge Johnson, Master Kaye and Nick Bacon KC – were charged with reconsidering and producing revised drafting proposals. CPRC pilots usually last for two years.
The future of PI reform and fixed costs are among the issues being debated at PI Futures on 19 September in Manchester. Click here for early bird tickets.
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