PERSONAL INJURY: MAINLY CLAIMENT: An Introduction to The South

I can think of few other industries that have been more impacted by the political whim of a sitting government than the one that involves injured parties claiming compensation. In nearly 20 years of practice, I cannot recall many years without some sort of consultation or future challenge to vex the comments section of the Law Gazette.

And of course, yet again we find ourselves about to tiptoe into/embrace/(delete as per your preference) a major change in this area of law.

In May of this year, the government announced that the current Fixed Costs Regime (FRC) was to be extended with effect from 1 October 2023. This would apply to all newly issued claims worth up to GBP100,000 (save for an exception here or there), but for cases involving injury it would apply only where the cause of action arose after 1 October 2023.

If, on the off-chance, you have been hiding behind the sofa for the last six months, FRC is a set amount that a successful party is entitled to recover in litigation from the losing party. The rationale seems simple enough. Whatever side you are on in a dispute covered by the rules, there are no nasty surprises and both sides know what they expect to receive or what they are in for.

What Are The Basics? 

FRCs will apply to the majority of civil litigation claims with a value of up to GBP100,000 from 1 October 2023. An intermediate track will be introduced, and FRCs will apply to all claims allocated to this track. It is envisaged that it will catch some clinical negligence claims where breach of duty and causation are admitted. Just to add a touch of late drama, APIL have commenced a judicial review, part of which seeks to provide further clarity on this.Complexity bands in the fast and intermediate tracks will be introduced, which in turn will impact on what FRCs are claimable. The court will assign a case to a complexity band under CPR 26.14. Practitioners need to be aware of the minor tweaks in how these cases proceed. For example, witness statements will need to be limited to 30 pages, and expert reports, 20 pages. Where there has been “unreasonable” behaviour, the receiving party’s costs can either be reduced or increased by 50% of the FRC. If a Part 36 offer is beaten, an extra 35% of the FRC is payable in addition to enhanced interest and the additional damages.It is envisaged that the new track will capture cases which can be tried in three days or less, with no more than two expert witnesses giving oral evidence on each side. Only where it is in the interest of justice to do so will a court allocate a claim including non-monetary relief to the intermediate track. Finally, in the Oliver Twist-themed escape room that will be CPR45.9, practitioners can potentially avoid FRCs if there are found to be “exceptional circumstances”. As to what will constitute exceptional circumstances and unreasonable behaviour will surely be determined swiftly and proportionately with some useful satellite litigation.

Any Action to be Taken? 

As at the time of writing, non-injury practitioners should certainly look at their caseload to see if it is in the best interests of the client to issue proceedings prior to 1 October 2023. After this date, it will be too late.

All practitioners would be best advised to ensure that their client care and retainer documents address the changes to include the recovery of shortfalls arising from the FRC, taking into account the learning points from Belsner, Karatysz and Menzies.

Keep asking yourself how can you conduct the litigation in a more efficient manner. Are you utilising IT fully? Is the correct lawyer conducting the litigation? Can you delegate more effectively?

It will be really important for all practitioners to know how their client’s case is likely to be impacted by FRCs from the outset. Get to know the tables of PD45. How will it be likely allocated and assigned? Is there likely to be an argument over complexity? Highlight any behaviour you think is unreasonable to the opposing party at an early stage. Do you have a client/witness who is likely to be vulnerable?

Conclusions 

So who wins from all of this? Injured clients? Insurers? Courts? Access to justice warriors? If solicitors are forced to recover further shortfalls from damages, then it is difficult to see it is the injured party (albeit it is important to state that efficient solicitors working in a manner which is proportionate to the issues at hand is never ever a bad thing, and this may focus minds even further). With long delays in the justice system already baked in (how long does it take to list a CCMC these days?) and the additional risk of arguments over complexity bands, appropriate tracks, etc, surely it can’t be the courts. Which leaves access to justice and insurers. It is a tricky argument to maintain that making it harder for smaller firms to carry out work for smaller clients results in increasing access to justice. Similarly, it is a reasonable assumption to make that fixing costs is very much not the same thing as fixing actual costs. So who is left? It is easy for claimant solicitors like me to reach the inevitable conclusion that this is all just a ploy to save large insurers money. Maybe, maybe not, but one thing is for sure, the extension of fixed costs in litigation is not going away any time soon.